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STANDARDS  OF  AMERICAN  LEGISLATION 


THE  UNIVERSITY  OF  CHICAGO  PRESS 
CHICAGO,  ILLINOIS 


THE  BAKER  &  TAYLOR  COMPANY 
NEW  YORK 

THE  MACMILLAN  COMPANY  OF  CANADA,  LIMITED 
TORONTO 

THE  CAMBRIDGE  UNIVERSITY  PRESS 
LONDON; 

THE   MARUZEN-KABUSHIKI-KAISHA 

TOKYO,  OSAKA,  KYOTO,  FUKUOKA,  SENDAI 

THE  MISSION  BOOK  COMPANY 
SHANGHAI 


STANDARDS  OF 
AMERICAN  LEGISLATION 

AN  ESTIMATE  OF  RESTRICTIVE  AND 
CONSTRUCTIVE  FACTORS 

By 

ERNST  FREUND 

Professor  of  Law  in  the  University  of  Chicago 
Author  of  "The  Police  Power" 


"Nothing  in  progression  can  rest  on  its  original 
plan."  "Legislators  ought  to  do  what  law- 
yers cannot." — BURKE,  Letter  to  the  Sheriff's. 


THE  UNIVERSITY  OF  CHICAGO  PRESS 
CHICAGO,  ILLINOIS 


COPYRIGHT  1917  BY 
THE  UNIVERSITY  OF  CHICAGO 


All  Rights  Reserved 


Published  March  1917 
Second  Impression  January  1926 


Composed  and  Printed  By 

The  University  of  Chicago  Press 

Chicago.  Illinois,  U.S.A. 


PREFACE 

This  book  gives  in  somewhat  expanded  form  the  sub- 
stance of  a  series  of  lectures  delivered  at  Johns  Hopkins 
University  hi  March,  1915.  The  origin  of  the  book 
explains  its  character:  it  is  an  essay  of  constructive 
criticism,  and  not  a  systematic  treatise.  Its  purpose  is 
to  suggest  the  possibility  of  supplementing  the  established 
doctrine  of  constitutional  law  which  enforces  legislative 
norms  through  ex  post  facto  review  and  negation  by  a 
system  of  positive  principles  that  should  guide  and  con- 
trol the  making  of  statutes,  and  give  a  more  definite 
meaning  and  content  to  the  concept  of  due  process  of 
law.  It  is  hoped  that  the  book  may  be  found  to  be  a 
sight  contribution  to  the  rapidly  growing  movement  for 
the  improvement  of  our  statute  law. 


TABLE  OF  CONTENTS 

PAGE 

SUMMARY  OF  CONTENTS ix 

INTRODUCTION i 

CHAPTER 

I.  HISTORIC   CHANGES   or   POLICY   AND   THE   MODERN 

CONCEPT  or  SOCIAL  LEGISLATION 7 

II.  THE  COMMON  LAW  AND  PUBLIC  POLICY    ....  34 

III.  THE  TASKS  AND  HAZARDS  OF  LEGISLATION     ...  72 

IV.  CONSTITUTIONAL  PROVISIONS 144 

V.  JUDICIAL  DOCTRINES 185 

VI.  THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION      .     .  215 

VII.  CONSTRUCTIVE  FACTORS 274 

INDEX 323 


vii 


SUMMARY  OF  CONTENTS 

Introduction 

Judicial  decisions  on  labor  legislation  during  the  last  ten  years — 
decision  in  the  Ives  case  in  New  York — due  process  as  fundamental 
policy — movement  for  recall  of  decisions — policy  without  definite 
content — the  standard  of  reasonableness — extent  of  legislative 
power  a  legal  or  a  political  issue  ? — historical  aspect  of  relation  of 
law  to  individual  rights — subjects  to  be  considered. 

CHAPTER    I.      HISTORIC    CHANGES    OF    POLICY    AND    THE    MODERN 
CONCEPT  OF   SOCIAL  LEGISLATION 

1.  The  right  of  personality;    the  abrogation  of  status  differ- 
ences:  (a)  Abrogation  of  slavery — (V)  disappearance  of  legal  class 
distinctions;  equal  protection  clause;  race  legislation — (^recogni- 
tion of  legal  rights  of  aliens;  immigration  legislation — (d)  emanci- 
pation from  domestic  subjection;    wife  in  Roman  and  modern 
Continental  law;   at  common  law;   married  women's  legislation; 
no  sex  disability;  status  of  child;  guardianship;  personal  protec- 
tion; juvenile  dependency  laws — nineteenth-century  achievements 
— race  problem. 

2.  Freedom  of  thought:  Constitutional  guaranties  of  freedom 
of  religion,  speech,  and  press — former  policy  of  religious  conformity; 
now  universal  toleration,  if  not  equality — former  state  control  of 
printing-press;    liberalization  of  law  of  libel;  practice  of  nine- 
teenth century — sedition — complete  reversal  of  former  policies — 
attitude  toward  anarchistic  agitation. 

3.  Repression  of  unthrift  and  dissipation:  Sumptuary  legisla- 
tion; gambling,  drink,  and  vice — relation  of  state  to  moral  ideals — ' 
legal   morality   and   established  order — relegation   of  ethics   to 
church — ecclesiastic  jurisdiction    and   sex  relations— marriage — 
non-forcible  injuries — post-reformation  legislation  regarding  gam- 
bling, drink,  and  vice — main  lines  of  policy — democratic  policies 
more  radical — standards  of  legislation  versus  standards  of  enforce- 
ment. 

ix 


x  SUMMARY  OF  CONTENTS 

4.  Protection  of  public  health  and  safety:   Less  a  change  of 
policy  than  a  change  of  conditions— new  mechanical  forces  in 
industry — new  scientific  control  of   disease — safety  subordinate 
to  effective  industry — flexible  administrative  sanitary  control — 
incisive  invasion  of  personal  and  property  rights — comparison 
with  oriental  system  of  polity;  custom  and  law. 

5.  Growth  of  social  legislation:    Growing  value  of  individual 
human  personality;  mass  welfare  instead  of  established  order  the 
test  of  public  good — meaning  of  social  legislation — repression  versus 
relief  of  lower  classes — poor  law — factory  laws — new  meaning  of 
term  since  1880 — social  welfare  measures — changing  character  of 
relief — respectable  provision  unattended  with  degradation — insur- 
ance features — Europe  more  advanced  than  America — relief,  not 
reconstruction — child  legislation  socialistic;  education,  vocational 
training — extension  of  factory  laws  to  women — hours  of  labor  for 
women  in  America — advance  from   sanitary   to   social  basis — 
justification  of  differentiating  legislation  on  basis  of  sex — economic 
handicap  of  women — interest  of  state  in  their  freedom  for  domestic 
function — historic  ideals  of  individualism  inapplicable  to  women — 
principle  of  non-interference  with  regard  to  male  adult  worker; 
exception  for  truck  legislation;   recent  departures  from  principle 
in  England;  coal  miners'  and  sweated  trade  laws — reconstructive 
agrarian  legislation  in  Great  Britain  and  Ireland — demands  of 
labor  how  far  within  practical  legislative  policy? — question  of 
knowledge  and  power — American  judicial  attitude  toward  labor 
legislation   explained   by   resistance    to   new   concept   of   state 
function — impossibility    of    identifying    economic   policies    with 
immutable  principles — courts  exercise  a  political,  not  a  judicial 
function. 

CHAPTER  II.   THE  COMMON  LAW  AND  PUBLIC  POLICY 

The  common  law  as  containing  the  essentials  of  justice  and 
'policy — common  law  formerly  supplemented  by  local  law,  royal 
prerogative,  and  the  church — decline  of  English  local  law — the 
church  as  guardian  of  public  morals — abrogation  of  punitive  ecclesi- 
astic jurisdiction. 

Equity  confined  to  property  interests — no  advance  through 
equity  in  standards  of  charity — married  women  not  protected 


SUMMARY  OF  CONTENTS  ri 

on  personal  side — infants  wards  of  equity  only  as  holders  of 
property. 

Royal  police  power  exercised  through  Star  Chamber — peace 
and  established  order  its  main  objects — public  policy  of  Star 
Chamber  gives  way  to  different  ideals. 

Connection  of  royal  power  with  corporations — requirement  of 
positive  sanction  as  means  of  public  control — special  remedies 
against  corporate  misdoing. 

The  common  law  of  the  common  law  courts — justice  as  a  rule 
justly  administered — preference  of  simplicity  to  close  adjustment 
to  varying  conditions — illustration  from  rule  against  perpetuities — 
public  policy  in  contracts — non-differentiation  of  commercial  law — 
effect  on  protection  of  purchasers — absence  of  distinct  policy  in 
law  of  landlord  and  tenant — fellow-servant  doctrine  as  a  rule  of 
abstract  justice  without  reference  to  social  interests  and  effects — 
no  conscious  capitalistic  bias — common  law  spirit  of  neutrality; 
subordination  of  policy  to  justice. 

Agreements  contrary  to  public  policy — public  interest  identi- 
fied with  facilities  for  public  service  rather  than  with  largest 
opportunity  for  individual  usefulness — recent  change  of  judicial 
attitude — English  attitude  toward  "contracting  out" — American 
attitude  basing  defenses  of  assumption  of  risk  and  of  fellow-servant 
doctrine  on  implied  contract — freedom  of  contract  as  a  paramount 
policy — recent  change  in  this  respect. 

Public  policy  in  law  of  torts  and  misdemeanors — felonies 
distinguished  from  offenses  against  public  policy — negligence, 
nuisance,  and  conspiracy — strict  judicial  standards  of  duty  of 
care  as  a  factor  in  railroad  safety — contrast  in  duty  toward  pas- 
sengers and  duty  toward  employees — employers'  liability  legisla- 
tion— no  effective  preventive  relief — no  adequate  remedy  for 
occupational  disease — law  of  nuisance  as  a  protection  to  property, 
not  to  the  person — capitalistic  combinations  not  actionable  at 
common  law — unsatisfactory  status  of  labor  combinations  under 
civil  law  of  conspiracy. 

Criminal  aspect  of  offenses  against  public  policy — no  criminal 
offense  of  negligence  If  no  loss  of  life— vagueness  of  offense  of 
criminal  conspiracy — association  with  labor  movement — criminal 
law  of  Duisance  as  the  common  law  of  the  police  power — cases  of 


xii  SUMMARY  OF  CONTENTS 

common-law  prosecutions  of  violations  of  public  safety  and  order — 
unsuccessful  attempt  to  treat  sale  of  intoxicating  liquor  as  a 
common-law  nuisance — no  nuisance  unless  actual  mischief — not 
adequate  for  prevention. 

Summary  of  shortcomings  of  common  law  as  system  of  public 
policy. 

CHAPTER  HI.   THE  TASKS  AND  HAZARDS  OF 
LEGISLATION 

A.  Legislation  and  the  vagueness  of  common-law  standards: 
(i)  Restraint  of  trade  and  monopoly — generic  prohibitions  of 
American  anti-trust  legislation — the  Trans-Missouri  and  Joint 
Traffic  decisions — the  rule  of  reason  of  the  Standard  Oil  and 
Tobacco  decisions — contention  that  test  of  reasonableness  made 
penal  provisions  unconstitutional  denied  by  Supreme  Court — 
specification  of  practices  by  Clayton  Act — new  method  of  Federal 
Trade  Commission  Act. — (2)  Legislation  and  the  common  law  of 
fraud — fraud  more  definite  concept  than  restraint  of  trade — 
common-law  standards  of  commercial  honesty  too  low — former 
English  legislation  for  regulation  of  trade — repeal  in  1856 — early 
New  York  legislation — abrogation  of  inspection  offices  in  1846. — 
(3)  Legislation  and  the  common  law  of  nuisance — lewdness  and 
obscenity  and  the  interests  of  science,  art,  literature,  and  social 
propaganda — doubt  as  to  success  of  further  legislative  definition — 
trade  nuisances — precarious  status  of  offensive  industries — a  case 
for  legislative  adjustment — license  and  regulation — common-law 
offense  necessarily  superseded  thereby — health  and  safety  legis- 
lation— precautionary  measures  and  invasion  of  province  of  legiti- 
mate action. 

B.  Problem  of  dealing  with  apprehended  tendencies  and  con- 
jectural dangers:    Liquor — policy    of    prohibition. — Gambling — 
European   toleration — prohibition   in   America. — Horse   racing — 
New   York   legislation. — Stock    dealings,    options,    and    futures 
— stock    exchange    regulation    and    bucket    shops — prohibition 
of  options   and   dealings    hi   futures — sustained  by   the   courts 
but  statutes  changed. — Oleomargarine  legislation — prohibition  of 
imitation  of  butter — prohibition  of  substitutes  for  butter — judicial 
attitude  toward  latter  prohibition — imitations  and  substitutes  and 


SUMMARY  OF  CONTENTS  xiii 

freedom  of  commerce — repeal  of  prohibition  of  substitutes — danger 
not  adequate  ground  for  legislation  suppressing  genuine  economic 
utilities. — Conjectural  dangers  and  the  question  of  fact — inade- 
quacy of  judicial  power — importance  of  issue — collusiveness  of 
legislative  judgment  where  there  is  genuine  difference  of  opinion — 
common  error  makes  law — problem  of  doubtful  facts  can  be  handled 
adequately  only  by  legislature — limited  possibility  of  judicial 
control. — Conjectural  dangers  and  the  question  of  good  faith — 
issue  in  legislation  for  licensing  requirements  in  trades — diversion 
of  legislative  power  to  improper  ends — judicial  unwillingness  to 
question  legislative  motive. 

C.  The  problem  of  contested  and  unmatured  standards — legis- 
lation by  indirection — new  standards  under  guise  of  familiar 
powers — legislative  unwillingness  to  relax  standards  once  estab- 
lished— illustrated  by  status  of  public  amusements. 

1.  Violation  of  social  obligations:    Malice,  wantonness,  and 
sharp  practices — unprofessional   conduct — German   Civil   Code, 
Sees.  138  and  826 — malice  not  actionable — spite-fence  legislation — 
unreasonable  notice  to  quit  in  recent  English  legislation. 

2.  Liability    for    industrial    accident — insurance — obligation 
divorced  from  fault — workmen's  compensation  and  the  New  York 
decision — measure  not  one  of  liability  but  of  relief  on  basis  of 
solidarity — insurance  as  only  adequate  form  of  solidarity. 

3.  Disfigurement  or  unsightliness — outdoor  advertising  and 
promotion  of  beauty — Prussian  and  English  legislation — amenity — 
protection  of  established  character  of  locality — American  judicial 
view  against  legitimacy  of  restriction  for  aesthetic  purposes — 
desirability  of  emphasizing  protective  character  of  legislation. 

4.  Unfair  competition — German  Act  of   1896 — anti-sca'lping 
legislation  and  trading-stamp  legislation — unconstitutionally  of 
latter — predatory  price-cutting — rationale  of  price  maintenance — 
careful  analysis  of  unfair  practices. 

5.  Oppression  and  exploitation — not  common-law  concepts — 
canon-law  concept  of  usury — usury  legislation  of  England  and 
Germany — economic  labor  legislation — truck  and  weekly-payment 
acts — American  judicial  attitude — doubt  and  resistance — exploit- 
ing character  of  practices  not  demonstrated  to  courts — approxi- 
mation to  economic  control — failure  to  assign  limits  to  legislative 


xiv  SUMMARY  OF  CONTENTS 

power — minimum-wage  acts  as  legislation  against  exploitation — 
requirement  of  special  finding  for  each  case — subnormal  or  anti- 
social practices. 

6.  Discrimination — discrimination   by   law   and   by   private 
act — civil   rights    legislation — discrimination    by   railroad    com- 
panies— common-law     status — European     legislation — American 
legislation — connection  with  monopoly — Oklahoma  constitution — 
Clayton  Anti-trust  Act — substantially  similar  circumstances  and 
conditions — elimination  of  this  qualification  in  the  long-and-short- 
haul  clause  in  1910 — residual  discretion  shifted  from  railroad  com- 
pany to  interstate  commerce  commission — policies  to  be  evolved 
by  commission. 

7.  New  standards  and  ascertained  facts — desirability  of  sub- 
stantiating case  for  new  legislation — frequent  failure  to  do  this 
in  America — effect  of  substantiation  on  judicial  decisions. 

8.  Abuse-correcting  and  standard-creating  legislation — appli- 
cation to  billboard  and  city-planning  legislation,  to  hours  of  labor, 
to  economic  labor  legislation,  to  minimum-wage  acts — correc- 
tive rate  regulation  and  two-cent  fare  acts — long-and-short-haul 
clause — corrective  legislation  proper  province  of  police  power — 
discretionary  standards  in  exercise  of  state's  proprietary  power,  in 
taxation,  in  licensing  power — difference  not  one  of  constitutional 
power. 

CHAPTER  IV.      CONSTITUTIONAL  PROVISIONS 

Neglect  of  positive  content  of  state  constitutions  by  writers 
on  constitutional  law — preponderance  of  provisions  relating  to 
organization  over  those  relating  to  action — excess  of  detail  of 
judicial  and  administrative  organization — represents  no  important 
constitutional  policy — unintended  resulting  limitations  of  legiti- 
mate legislative  power — recent  constitutions  more  rapidly  anti- 
quated than  older  ones. 

Provisions  to  increase  popular  control — suffrage — ballot — 
elective  office — election  of  judges — direct  legislation,  initiative, 
and  referendum — demand  for  popular  power  of  control  stronger 
than  its  exercise — slight  reaction  in  short-ballot  movement. 

Provisions  relating  to  legislative  policy  or  action — reversal  of 
original  tendencies — character  and  origin  of  bills  of  rights  pro- 


SUMMARY  OF  CONTENTS  XV 

visions — federal  guaranties — general  character  of  nineteenth- 
century  restrictions. — Restraints  on  formal  side  of  legislation, 
procedure,  and  style — procedural  requirements,  conditions  under 
which  they  are  practicable  or  desirable — style  requirements,  title, 
subject-matter,  amendments,  productive  of  technical  defects — 
suggestion  for  reducing  this  risk. — Substantive  limitations — debt 
and  taxation — private  and  special  legislation — local  legislation — 
home  rule  guaranties. — Humanitarian  provisions,  education,  penal 
reform,  married  women,  labor. — Social  and  economic  policies — 
lotteries — provisions  regarding  intoxicating  liquors — constitutional 
prohibition  inapplicable  to  capitalistic  enterprise — prohibition  of 
special  charters. — Banks — requirement  of  referendum  for  banking 
legislation — positive  bank  regulation  through  constitution — 
Florida — other  constitutional  banking  provisions,  shareholders' 
liability. — Railroads — constitutional  provisions  since  1870 — stabil- 
ity of  constitutional  provisions — they  merely  register  established 
legislative  policies — subjects  absent  from  constitutions — slight 
practical  effect  of  constitutional  expression  of  railroad  policy. — 
Corporations  in  general — prohibition  of  special  charters — other 
provisions  for  guarding  fulness  of  state  control — constitutional 
corporation  commissions — no  definite  policies  regarding  corporate 
organization,  powers  or  finance — shareholders'  liability  provisions 
fluctuating — public  service  corporations — corporation  article  in 
Oklahoma  constitution. — General  character  of  positive  constitu- 
tional policies — they  do  not  inaugurate  but  register — slight  care 
in  phrasing — inability  to  check  abuses  through  constitution — 
untenable  experiments — scarcity  of  judicial  decisions — prohibi- 
tion of  public  aid  to  private  enterprise  a  successful  constitutional 
policy — significance  of  mere  fact  of  provision  through  constitution. 
Constitutions  and  fundamental  rights — some  progress  in 
freedom  of  religion,  speech,  and  press — additional  rights  to  com- 
pensation under  eminent  domain — protection  of  personal  rights 
against  corporations — principle  of  equality — no  additional  guar- 
anties corresponding  to  growth  of  police  power — bills  of  rights 
in  constitutional  conventions — incidental  issues  in  connection  with 
fundamental  guaranties — due  process  and  law  of  land — fulness  of 
Massachusetts  Body  of  Liberties  of  1641 — enumeration  of  rights 
more  complete  in  Switzerland  than  in  United  States — bills  of  rights 


xvi  SUMMARY  OF  CONTENTS 

stationary — no  formulation  of  principles  of  reasonableness — 
indifference  to  development  though  sentimental  attachment  to 
existing  guaranties — principle  and  tradition  outside  of  written 
constitution — constitution-making  democracy  not  actively  con- 
cerned with  right  and  justice. 

CHAPTER  V.      JUDICIAL  DOCTRINES 

Individualistic  spirit  of  private  law — tendency  against  implica- 
tion of  obligations  in  property  and  contract — favored  position  of 
defendant — procedural  guaranties  of  Great  Charter — protection 
of  private  right  against  authoritative  encroachment — protection 
of  common-law  liberty  against  abuse  of  royal  prerogative — pro- 
tection of  general  liberty  against  unreasonable  regulation  through 
common-law  restraints  on  municipal  power  of  making  by-laws — 
assumption  of  entire  regulative  power  by  Parliament  obscures 
common-law  protection  against  unreasonable  regulation — par- 
liamentary omnipotence  inconsistent  with  sphere  of  private  im- 
munity— English  law  without  theory  of  legal  rights  against  the 
state— Locke's  idea  of  natural  right  realized  only  through  revolu- 
tion— no  limitation  of  legal  character  upon  Parliament — conditions 
in  colonies  making  for  different  state  of  mind,  people  as  source  of 
power,  natural  rights,  fundamental  laws,  Parliament  without 
power  to  bind  because  colonies  not  represented  in  it — foundation 
for  constitutional  system  of  limited  legislative  powers — limitations 
specific,  not  inherent  or  implied — judicial  power  to  declare  laws 
unconstitutional. — History  of  enforcement  of  general  limitations — 
few  decisions  prior  to  1850  based  on  non-specific  clauses,  but  far- 
reaching  dicta — between  1850  and  1870  two  decisions  opposing 
general  constitutional  limitations  to  legislative  regulation  of  civil 
liberty — after  1870  first  decisions  declaring  unreasonable  regulation 
unconstitutional — significance  of  Slaughter-House  cases,  Loan 
Association  v.  Topeka,  and  Granger  cases — from  middle  of  eighties 
labor  legislation  decisions — doctrine  of  freedom  of  contract — New 
York  decision  against  workmen's  compensation  legislation — other 
decisions  invalidating  legislation  affecting  property  or  business — 
established  doctrine  of  power  to  declare  unconstitutional  on  ground 
of  general  right  of  liberty — present  association  of  power  with  due- 
process  clause — originally  no  thought  of  need  of  protection  in  this 


SUMMARY  OF  CONTENTS  xvii 

respect — courts  protecting  now  in  the  name  of  due  process  funda- 
mental policies  and  not  merely  cardinal  or  immutable  principles 
of  justice — political  demand  for  such  protection  by  courts — 
indefiniteness  of  ground  of  judicial  control  of  a  defect  of  law  but 
not  of  policy — no  danger  of  permanent  hindrance  to  legislative 
progress,  rather  danger  of  inadequate  protection  for  policy  of  indi- 
vidual freedom — constitutional  issues  are  issues  of  power  and 
policy — judicial  control  incapable  of  developing  permanent  prin- 
ciples of  legislation. 

CHAPTER  VI.      THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION 

Precedent  and  customary  practices  in  legislation — principle 
in  legislation  different  from  principle  in  common  law — mandatory 
character  of  constitutional  requirements — freedom  of  policy — 
settled  policies — agreed  policy  as  the  principle  of  a  particular 
statute — principle  as  the  inherent  law  of  legislation — principles 
expressed  in  constitution — equality — due  process  and  reasonable- 
ness— principle  that  remote  or  conjectural  danger  does  not  justify 
suppression  of  legitimate  and  valuable  interests — illustrated  by 
legislation  regarding  oleomargarine  and  options  and  futures — 
course  of  history  set  against  judicial  opinion — principle  that  penal 
legislation  should  avoid  elastic  prohibitions  where  difference 
between  legitimate  and  unlawful  is  one  of  degree — history  of 
criminal  enforcement  of  Sherman  Act — common-law  offenses 
violating  same  principle;  common  law,  due  process,  and  principle — 
general  phrases  in  enabling  acts;  in  acts  granting  civil  remedies. 

Correlation  of  provisions — logical  consistency  of  different 
parts  of  same  rule — lack  of  correlation  without  fatal  inconsist- 
ency of  terms — correlation  in  the  common  law  a  consequence  of 
unity  of  system — exceptions — partial  statutory  change  of  com- 
mon law  producing  uncorrelated  conditions. — (i)  Doctrine  of 
Abilene  case,  common-law  remedy  inconsistent  with  rule  of  non- 
discrimination,  eliminated  by  judicial  construction. — (2)  Traffic 
agreement  cases — Sherman  Act  applied  by  majority  opinion  to 
railroads — dissenting  opinion  shows  that  regulated  rates  inevitably 
produce  understandings  and  agreements— continuing  practice  of 
concerted  action  by  railroad  companies  in  matter  of  rates — execu- 
tive recommendations  to  bring  law  in  conformity  with  practice. — 


xviii  SUMMARY  OF  CONTENTS 

(3)  The  Pipe  Line  cases — pipe  lines  made  common  carriers  by 
same  act  which  forbids  railroad  common  carriers  to  transport 
commodities  produced  or  owned  by  them — inconsistency  of  forcing 
companies  which  had  never  been  carriers  for  others  into  relation 
declared  for  other  carriers  to  be  contrary  to  public  policy — incon- 
sistency avoided  by  judicial  construction. — (4)  Illinois  warehouse 
legislation — statute  permitting  warehousemen  to  store  their  own 
grain  declared  invalid  as  inconsistent  with  constitutional  policy 
of  warehouse  regulation. — Difference  between  positive  disharmony 
and  imperfection  due  to  omission — judicial  attitude  toward  right 
of  murderer  to  inherit  from  victim — canons  of  construction  often 
do  not  permit  supplementing  of  defective  rules. — Correlation  in 
labor  legislation — remedying  grievances  by  shifting  balance  of 
inconvenience  to  other  side. — Coal-weighing  legislation — refer- 
ence of  problem  in  Ohio  to  commission — resulting  compromise 
measure  sustained  by  Supreme  Court. — Membership  in  labor 
unions  and  right  of  discharge — Coppage  v.  Kansas — weakness  of 
reasoning  of  prevailing  decisions — failure  of  legislation  to  protect 
legitimate  interest  of  employer — bare  denial  of  legislative  power 
should  be  replaced  by  more  perfect  correlation  of  rights  and  obliga- 
tions— absolute  correlation  a  counsel  of  perfection — inevitable 
social  and  economic  maladjustments — legislative  attempts  to 
correlate  in  new  forms  of  statutory  liability — statute  law  more 
complex  than  common  law. 

Principle  of  standardization — certainty,  objectivity,  stability, 
uniformity. — (i)  Conformity  to  scientific  laws — necessary  com- 
promises with  prejudice  and  available  resources — technical  task 
of  translating  conclusions  of  other  sciences  into  terms  of  statutes — 
standardization  of  juristic  data — neglect  of  constructive  juris- 
prudence by  legal  literature — many  juristic  problems  capable  only 
of  empirical  or  conventional  solution,  narrow  range  of  scientific 
principle — expediency  considerations — weight  to  be  given  to 
adverse  factors,  to  probability  of  unintended  reactions — observance 
of  certain  order  of  transition  to  new  standards  and  policies. — 
(2)  Observance  of  definite  method  in  reaching  determinations — 
reasonably  constant  relations  between  determinations  on  cognate 
matters,  particularly  where  legislation  deals  with  measured  quan- 
tities— inferiorityin  this  respect  of  American  legislation. — (3)  Stand- 
ardization of  offenses  and  penalties. — (4)  Avoidance  of  instability 


SUMMARY  OF  CONTENTS  xix 

of  policy — comparison  of  number  of  amendments  in  different  codes 
of  procedure — non-contentious  provisions — their  treatment  in 
England — clauses — consolidation  acts — French  and  German  ad- 
ministrative codes — difference  between  federal  and  state  legisla- 
tion— advantage  of  segregation  of  subsidiary  clauses — lack  of 
attention  to  technical  detail  where  substantive  policy  is  the  main 
issue — administrative  provisions  of  Sherman  Act — informers' 
shares — futility  of  drastic  penalties — separate  codification  of  ad- 
ministrative clauses  as  a  statutory  bill  of  rights. 

Constitutional  principles  of  equality  and  standardization  of 
elements  of  differentiation — superior  differentiation  where  legis- 
lation is  comprehensive — judicial  enforceability  not  a  necessary 
attribute  of  principle  of  legislation — safeguard  of  principle  in 
method  of  legislation. 

CHAPTER  VII.   CONSTRUCTIVE  FACTORS 

The  courts  as  constructive  factors — jurisdiction  to  annul,  not 
to  correct  legislation — judicial  construction  as  supplementary 
legislation — spirit  of  constitutional  construction — Marbury  v. 
Madison — enumerated  jurisdiction  construed  as  exclusive  jurisdic- 
tion— doctrine  of  resulting  limitations — constitutional  powers 
exempt  from  legislative  regulation — mutual  exclusiveness  of  state 
and  federal  powers — applied  to  taxation — impossibility  of  carrying 
out  principle  logically — inequity  of  recognized  exemptions — judicial 
view  of  legislative  policy  and  vested  rights — doctrine  that  police 
power  cannot  be  bargained  away — L.  &  N.R.  Co.  v.  Mottley — 
judicial  view  influencing  legislature  or  forced  upon  it — apprehen- 
sion of  judicial  attitude  unfavorably  affecting  legislative  practice 
in  matter  of  constitutional  style  provisions — spirit  of  adjudication 
compared  with  spirit  of  legislation,  minimum  versus  maximum  of 
reciprocal  concession. 

Legislative  practice  as  a  constructive  factor — superiority  of 
technical  standards  in  Europe — practical  monopoly  of  legislative 
initiative  possessed  by  European  governments — executive  initiative 
professionalizes  drafting — German  practice  of  drafting  measures — 
government  has  to  defend  measures  in  Parliament — history  of 
drafting  in  England. — Possibilities  of  increased  executive  participa- 
tion in  America. — Defects  of  American  legislative  procedure — lack 
of  responsibility  for  introducing  bill — lack  of  adverse  procedure  in 


xx  SUMMARY  OF  CONTENTS 

passing  bill — multiform  organization  of  legislation  not  utilized  for 
functional  differentiation — revisory  function  of  European  second 
chambers — executive  initiative  without  veto  counts  for  more  than 
veto  without  initiative — large  political  body  likely  to  be  indifferent 
to  technique. — English  private  bill  legislation  a  procedure  looking 
toward  observance  of  principle — serves  in  England  special  purposes 
otherwise  taken  care  of  in  United  States — same  procedure  not 
applied  in  England  to  general  legislation — procedure  does  not  con- 
tain our  constitutional  safeguards — not  available  as  instrument  of 
reform. — Improvement  of  legislative  procedure — undesirability  of 
new  constitutional  requirements. — (i)  Commission  for  preparing 
bills  proposed  for  Illinois — preparation  of  bills  by  special  commis- 
sions— growth  of  practice  in  recent  years. — (2)  Delegation  of  power 
to  administrative  commissions — more  professional  point  of  view — 
action  more  readily  controllable  by  reference  to  general  principles — 
commission  action  and  rulings  as  best  if  not  only  method  of  stand- 
ardization.— (3)  Organization  of  drafting  bureaus — report  to 
American  Bar  Association,  1913 — relation  of  legislative  reference 
to  legislative  drafting — tenure  of  draftsmen. — (4)  Codification  of 
standing  clauses — list  of  topics  in  report  to  American  Bar  Asso- 
ciation, 1913 — legislative  drafting  manual — non-mandatory  char- 
acter of  clauses  acts. 

Jurisprudence  as  constructive  factor — small  proportion  of 
scientific  legal 'thought  given  to  problems  of  constructive  legisla- 
tion— legal  writings  adapted  to  needs  of  practitioners — domination 
of  legal  science  by  professional  point  of  view  in  other  countries 
and  systems — more  favorable  condition  for  constructive  legal 
thought  in  Germany  than  in  America — task  of  American  law 
schools. 

Source  material — text  of  statutes,  lack  of  indices,  lack  of  infor- 
mation on  origin  of  provisions — current  collections  of  statutes — 
secondary  legislative  material:  debates,  reports,  documents,  for 
Congress  and  for  states — administrative  reports — conference  pro- 
ceedings— secondary  legislative  material  for  European  states — 
parliamentary  debates — English  Bluebooks — German  documentary 
material — English  and  American  law  reports  as  source  of  history 
of  legislation. 

Practical  value  of  system  of  principles  of  legislation. 


INTRODUCTION 

There  have  been  few  judicial  decisions  so  disconcert- 
ing to  believers  in  the  progressive  development  of  the 
law  as  that  rendered  in  1911  by  the  Court  of  Appeals  of 
New  York  against  the  validity  of  the  first  workmen's 
compensation  act  of  that  state.  Differing  in  this  respect 
from  most  other  constitutional  decisions  in  labor  cases,  it 
did  not  reflect  the  judicial  view  of  the  wisdom  or  justice  of 
the  legislation  which  it  condemned  but  merely  its  view 
of  the  rigidity  of  the  law  under  existing  American  consti- 
tutions. While  the  decision  did  not,  as  subsequent  de- 
velopments have  shown,  stop  the  onward  course  of  the 
type  of  legislation  which  it  checked  only  slightly,  yet  as 
the  unanimous  expression  of  the  most  important  of  state 
courts  it  could  not  be  regarded  otherwise  than  as  ex- 
tremely significant.  It  seemed  quite  inadequate  to  apply 
to  such  a  decision  the  usual  methods  of  legal  criticism; 
for  even  if  it  were  possible  to  demonstrate  conclusively 
the  unsoundness  of  the  conclusion  reached  by  the  court, 
the  question  would  remain  how  it  was  possible  that  so 
narrow  a  view  of  legislative  power  could  command  such 
eminent  support  and  what  theory  of  judicial  control  or 
of  constitutional  limitation  it  indicated. 

A  clue  to  the  situation  may  be  discovered  in  the 
opinion  itself.  The  court  speaks  of  the  cogent  economic 


2  STANDARDS  OF  AMERICAN  LEGISLATION 

and  sociological  arguments  urged  in  support  of  the  work- 
men's compensation  law;  it  admits  the  strength  oi  the 
appeal  to  a  recognized  and  widely  prevalent  sentiment; 
but,  the  opinion  adds,  "it  is  an  appeal  which  must  be 
made  to  the  people  and  not  to  the  courts."  Here,  in 
other  words,  is  a  law  that  can  be  made  by  the  people,  but 
not  by  the  legislature.  It  is  well  known  that  the  appeal 
was  successfully  made,  and  that  a  new  compensation  law 
was  enacted  under  express  constitutional  authority 
which  the  Court  of  Appeals  has  since  sustained  (Jensen  v. 
So.  Pac.  R.  Co.,  215  N.Y.  514). 

To  the  Court  of  Appeals,  then,  the  due-process  clause 
of  the  constitution,  upon  which  it  based  its  decision,  was 
not,  as  the  similar  clause  in  the  federal  Constitution 
appeared  at  least  in  one  case  to  the  Supreme  Court,  a 
clause  intended  to  secure  the  immutable  cardinal  prin- 
ciples of  justice  (169  U.S.  387).  It  is  unthinkable  that 
the  court  should  have  suggested  an  appeal  to  the  people 
to  subvert  those  principles.  It  was  rather  a  fundamental 
policy  of  distributive  justice  which  the  New  York  Court 
saw  fixed  upon  the  state  by  the  guaranty  of  due  process 
— fundamental,  but  after  all  only  a  policy,  likely  to  be 

changed  by  the  progress  of  economic  and  social  thought. 
It  is  an  interesting  and  significant  fact  that  the  atti- 
tude of  the  courts  toward  social  legislation  which  culmi- 
nated in  the  Ives  case  gave  rise  to  the  demand  for  a  right 
to  recall  judicial  decisions  which  was  inscribed  upon  the 
platform  of  a  political  party.  The  demand  represented, 
in  addition  to  the  dissatisfaction  with  the  judicial  resist- 


INTRODUCTION  3 

ance  to  policies  indorsed  by  progressive  and  insistent 
popular  sentiment,  a  strong  political  reaction  against  the 
claim  of  judicial  power  to  fix  upon  the  state  by  way  of 
constitutional  interpretation  policies  which  were  merely 
implied  and  upon  which  the  people  had  never  had  a 
chance  to  declare  themselves  explicitly.  If  the  move- 
ment for  the  recall  of  judicial  decisions  is  severely  con- 
demned— and  there  is  no  intention  here  to  defend  it — it 
should  at  least  be  understood  how  it  arose,  and  it  should 
help  us  to  discriminate  between  policies  and  principles. 

The  popular  objection  to  the  attitude  of  the  courts  in 
opposing  to  social  legislation  alleged  constitutional  policies 
was,  however,  not  merely  that  these  policies  were  implied 
and  therefore  judge-made;  more  serious  was  the  fact 
that  they  were  entirely  indefinite.  It  would  be  possible 
to  read  into  our  constitutions,  as  essential  to  republican 
government,  a  right  of  political  association  in  analogy  to 
the  explicitly  guaranteed  right  of  assembly.  Such  a  right 
could  be  easily  formulated  and  its  limits  judicially  defined 
without  great  difficulty.  It  is  otherwise  with  the  rights 
that  are  supposed  to  stand  in  the  way  of  advanced  social 
legislation.  We  have  heard  much  of  freedom  of  contract. 

Would  anyone  be  prepared  to  place  this  right  by  the  side 
of  freedom  of  press  and  religion  without  definition  or 

qualification  ?  Legislative  regulation  of  the  right  of  con- 
tract can  obviously  be  questioned  only  by  reason  of  the 
manner  and  extent,  not  by  reason  of  the  mere  fact,  of  its 
exercise.  But  then,  from  a  legal  standpoint,  the  essential 
thing  is  not  the  right,  but  its  qualification,  and  an  unde- 


4  STANDARDS  OF  AMERICAN  LEGISLATION 

fined  claim  to  freedom  of  contract  presents  in  reality  no 
justiciable  issue. 

What  then  have  the  courts  done  to  define  the  issue  ? 
Have  they  said  that  the  freedom  of  contract  may  be 
impaired  only  for  the  protection  of  public  health  and 
safety  ?  No,  for  they  always  also  make  a  reservation  for 
the  vague  interest  designated  as  public  welfare.  Do  they 
concede  to  the  state  the  right  to  interfere  on  behalf  of 
economically  inferior  classes?  There  is  as  yet  no  clear 
doctrine  to  that  effect.  After  all,  the  courts  offer  us 
nothing  more  definite  than  the  idea  of  reasonableness,  a 
criterion  which  lacks  both  precision  and  objectiveness. 
What  should  we  say  to  a  similar  criterion  in  the  law  of 
property?  A  family  settlement  has  been  said  to  be 
much  like  an  act  of  Parliament,  and,  not  unlike  public 
legislation,  it  impairs  the  freedom  of  property.  The 
courts  have  therefore  established  a  rule  against  per- 
petuities. In  an  early  leading  case  (Duke  of  Norfolk's 
case,  3  Chancery  Cases  i  [1682])  Lord  Chancellor  Not- 
tingham, who  had  sustained  a  settlement  which  made 
property  inalienable  for  a  number  of  lives  in  being, 
was  asked  to  indicate  the  bounds  of  a  lawful  limitation: 
What  tune  ?  Where  are  the  bounds  of  that  contingency  ? 
Where  will  you  stop  if  you  do  not  stop  here  ?  "I  will  tell 
you,"  he  said,  "where  I  will  stop:  I  will  stop  wherever 
any  visible  inconvenience  doth  appear."  It  took  the 
courts  one  hundred  and  fifty  years  to  define  this  visible 
inconvenience  with  precision;  before  that  time  they 
operated  with  the  principle  of  reasonableness;  thereafter 


INTRODUCTION  5 

they  discarded  it  and  placed  the  law  upon  a  certain 
footing.  The  criterion  of  reasonableness  may  be  the  only 

one  available;  but  if  so,  it  means  that  adequate  scientific 
or  conventional  tests  have  not  yet  been  developed.  To 
oppose  legislative  discretion  by  undefined  judicial  stand- 
ards of  reasonableness  is  to  oppose  legislative  by  judicial 
discretion,  and  constitutional  doctrines  so  vaguely  formu- 
lated cannot  be  expected  to  command  confidence. 

Apart  from  this  the  question  will  remain  whether  the 
extent  of  legislative  power  over  personal  and  property 
rights  not  covered  by  specific  constitutional  guaranties  is 
a  legal  or  a  political  issue.  The  prevailing  doctrine  of 
constitutional  law  treats  the  issue  as  a  legal  one  and  thus 
assigns  its  determination  to  judicial  authority;  but  if  it  is 
in  its  nature  political,  the  purely  judicial  attitude  of  mind 
brought  to  the  task  must  constitute  a  limitation  and  a 
handicap  rather  than  a  superior  qualification.  It  is 
therefore  worth  while  to  examine  the  relation  of  law  to 
individual  rights  from  a  broader  point  of  view  than  pre- 
cedent and  implication  from  abstract  formulas,  and  to 
see  whether  a  survey  of  historic  changes  will  not  give  a 
fairer  basis  for  estimating  the  legitimacy  of  statutory 

policies. 

Such  a  survey  will  therefore  form  the  starting-point 

in  the  attempt  to  differentiate  policy  and  principle  in 
legislation.  In  order  to  simplify  the  task,  the  reference 
will  be  mainly  to  social  policies,  which  will  be  traced  in 
common-law  doctrines,  in  the  legislation  enacted  to  meet 
common-law  deficiencies,  and  hi  constitutional  provisions. 


6  STANDARDS  OF  AMERICAN  LEGISLATION 

It  will  appear  that  the  prevailing  concepts  of  principle 
are  in  the  main  due  to  judicial  action,  and  on  the  basis  of 
both  legislative  and  judicial  experience  the  meaning  of 
principle  should  be  made  clear.  The  result  of  the  exami- 
nation should  enable  us  to  estimate  the  factors  by  the 
aid  of  which  a  system  of  constructive  principles  of 
legislation  may  be  built  up. 


CHAPTER  I 

HISTORIC  CHANGES  OF  POLICY  AND  THE  MODERN 
CONCEPT  OF  SOCIAL  LEGISLATION 

The  main  phases  of  evolution  which  are  summarized 
in  the  catalogue  of  changes  which  follows  are  perfectly 
familiar;  they  are  restated  simply  in  order  to  bring  out 
pointedly  the  drift  of  modern  legislative  thought  and  its 
significance. 

They  arrange  themselves  naturally  under  a  few 
principal  heads:  the  recognition  of  the  right  of  person- 
ality; the  establishment  of  freedom  of  thought;  the 
repression  of  unthrift  and  dissipation;  the  protection  of 
public  health  and  safety;  and  the  relief  from  social 
injustice. 

I.     THE  RIGHT  OF  PERSONALITY 

It  is  a  commonplace  of  legal  history  that  the 
importance  of  status  as  something  differentiated  from 
personality  diminishes  as  we  proceed  from  primitive  to 
modern  law.  We  have  almost  attained  to  a  wiping  out 
of  personal  differences  in  relation  to  legal  rights;  but  the 
leveling  process  is  in  many  respects  quite  recent,  and,  so 
far  as  it  goes,  has  in  the  main  been  fully  accomplished 
only  in  the  course  of  the  nineteenth  century. 

Let  us  briefly  review  the  principal  phases  in  the  estab- 
lishment of  free  and  equal  personal  status. 


8  STANDARDS  OF  AMERICAN  LEGISLATION 

a)  The  abrogation  of  personal  slavery  and  serfdom. — 
These  have  practically  disappeared  from  the  face  of  the 
civilized   earth.    By   the   beginning   of   the  nineteenth 
century  all  personal  unfreedom  had  ceased  to  exist  in 
Western  Europe,  and  Russian  serfdom  was  abolished 
in  the  early  sixties.    About  contemporaneous  was  the  fall 
of  negro  slavery  in  the  United  States,  which  was  made 
legally   perfect   by    the   Thirteenth   Amendment,    pro- 
claimed in  December,  1865;   the  emancipation  of  negro 
slaves  held  by  whites  had  begun  in  1833  in  the  British 
colonies,  and  was  completed  by  the  act  of  Brazil  in  1888. 
European    powers    still    tolerate    customary    forms    of 
domestic  slavery  within  their  spheres  of  influence  in 
Africa;   but  even  here  the  slave  trade  is  suppressed  by 
the  Brussels  convention  of  1890. 

b)  The  disappearance  of  legal  class  distinctions. — If  we 
ignore  the  anomalous  and  rapidly  waning  status  of  our 
own  tribal  Indians  as  wards  of  the  nation,  Russia  alone 
of  the  Western  nations  continues  to  divide  her  people  into 
classes  having  different  legal  capacity  (nobility,  clergy, 
citizens,  peasants,  besides  Asiatics  and  Jews).     France 
did  away  with  class  disabilities  as  a  result  of  the  great 
Revolution  in  1789,  while  in  Germany  the  last  traces 
of  peasants'  disabilities  did  not  disappear  until   1867. 
Blackstone  gives  in  his  Commentaries  a  list  of  classes  of 
the  community  which  (barring  the  political  privileges  of 
the  peerage)    impresses   us   as   formal   and   practically 
insignificant;  it  has  indeed  been  one  of  the  chief  merits  of 
the  common  law  that  for  many  centuries  past  it  has  been 


THE  MODERN  CONCEPT  OF  SOCIAL  LEGISLATION  5 

singularly  free  of  class  distinctions.  This  rule  of  equal- 
ity was  inherited  by  the  American  law.  Because  the 
principle  of  equality  had  never  been  a  great  issue  in  the 
constitutional  history  of  the  English  people  it  received 
only  a  perfunctory  recognition  in  the  early  bills  of  rights; 
its  deliberate  and  distinct  formulation  by  the  Fourteenth 
Amendment  was  due  to  the  race  conflict  of  the  South  and 
came  only  after  the  Civil  War.  The  practical  acceptance 
of  the  principle  thus  long  preceded  its  formal  declaration. 
The  principle  encounters  difficulty  only  in  its  application 
to  the  colored  race;  and  in  the  legal  enforcement  of 
reciprocal  discrimination  and  segregation  in  marriage,  in 
education,  and  in  transportation  in  public  conveyances 
(quite  recently  also  hi  residence)  denies  the  principle  in 
substance,  while  claiming  to  respect  it.  The  demand 
for  legal  penalties  shows  that  the  social  sanction  is  not 
believed  to  be  sufficiently  strong  to  maintain  a  separation 
strongly  supported  by  the  sentiment  of  the  dominant 
class. 

Apart  from  this  anomaly,  however,  in  the  modern 
world  the  accident  of  birth  as  a  member  of  a  social  class 
neither  carries  privilege  nor  entails  disability  in  the 
capacity  to  acquire  or  hold  legal  rights. 

c)  The  recognition  of  the  legal  rights  of  aliens. — In  the 
ancient  Roman  law  alien  and  enemy  were,  alike,  covered 
by  the  same  term — hostis — and  were  entirely  without 
legal  rights.  Today  by  comity  or  treaty  the  alien  enjoys 
practically  the  same  civil  capacity  as  the  citizen.  The 
common  law  attaches  to  alienage  certain  disabilities  in 


10  STANDARDS  OF  AMERICAN  LEGISLATION 

the  matter  of  land  tenure  which  have  not  been  every- 
where or  altogether  removed  by  legislation,  and  which  in 
some  instances  have  been  added  to,  particularly  with 
reference  to  non-resident  aliens.  By  an  anomaly  of  our 
constitutional  law  this  matter  is  in  America  still  under 
state  control,  subject  to  the  supremacy  of  treaty  stipu- 
lations. It  is  noteworthy  that  the  guaranties  of  the 
Fourteenth  Amendment  apply  to  all  persons  within  the 
jurisdiction  of  the  states,  and  not  merely  to  citizens. 

The  important  right  of  immigration  and  settlement  is 
not  necessarily  included  in  the  civil  capacity  of  the  alien. 
In  many  countries  the  matter  is  not  of  sufficient 
importance  to  have  called  for  special  regulation,  but 
where  immigration  assumes  considerable  dimensions  the 
right  has  been  qualified  by  restrictive  legislation.  Our 
own  legislation  is  typical  in  that  respect.  In  the  absolute 
exclusion  of  Chinese  laborers  disabilities  of  race,  class, 
and  alienage  are  combined,  and  this  legislation  serves  as 
a  warning  that  the  modern  principle  of  equality  is  by  no 
means  of  absolute  operation. 

d)  The  emancipation  from  domestic  subjection. — The 
law  of  ancient  Rome  and  the  law  of  modern  Japan  are 
typical  of  legal  systems  in  which  members  of  the  house- 
hold are  subjected  to  the  dominion  of  the  male  head  and 
are  individually  of  imperfect  legal  capacity.  In  Rome 
the  wife  became  in  course  of  time  relieved  from  this  sub- 
jection, and  in  the  case  of  the  child  it  survived  mainly  as 
a  formal  rule  of  law,  practically  nullified  by  important 
modifications  and  exceptions.  The  Continental  nations 


THE  MODERN  CONCEPT  OF  SOCIAL  LEGISLATION         1 1 

which  received  the  Roman  law  repudiated  this  entire 
branch,  and  related  institutions  of  their  own  (mundium) 
gradually  died  off.  In  the  modern  civil  law  the  wife  is 
an  inferior  partner,  but  still  a  partner,  in  the  marital 
community. 

The  common  law  of  England  practically  reproduced 
for  the  wife  the  dependent  status  which  the  older  Roman 
law  assigned  to  all  the  members  of  the  family  except  the 
head.  It  even  aggravated  the  dependency  by  denying 
to  the  wife  the  capacity  to  perform  disposing  or  binding 
acts  (coverture;  feme  covert).  It  is  significant  that  the 
old  law  of  serfdom  furnished  to  English  lawyers  analo- 
gies for  the  relation  of  husband  and  wife.  The  courts  of 
equity  managed,  however,  to  give  to  the  married  woman 
a  very  considerable  protection  in  the  enjoyment  of  her 
property. 

The  law  of  coverture  was  taken  over  by  the  American 
states,  together  with  such  practical  modifications  as  the 
system  of  equity  jurisprudence  had  developed  in  England. 

Legislative  reform  began  about  1840,  and  in  the  begin- 
ning did  little  more  than  adopt  and  enact  into  statute  law 
the  doctrine  of  the  courts  of  equity.  Gradually  it  made 
the  wife  entirely  independent  of  the  husband.  In  this 
legislation  England  followed  America,  beginning  her 
reform  in  1870.  In  America  the  course  of  legislation 
extended  over  a  very  long  period;  Tennessee,  as  the  last 
state,  did  not  abandon  the  system  of  coverture  until  1913. 
In  those  states  which  have  on  the  whole  adopted  the 
Continental  system  of  marital  community  of  property 


12  STANDARDS  OF  AMERICAN  LEGISLATION 

rights  the  peculiar  disabilities  of  coverture  are  likewise 
unknown. 

It  should  be  remembered  that  the  coverture  applied 
only  to  women  living  in  marriage;  that,  in  other  words, 
the  common  law  recognized  no  sex  disability  in  the  matter 
of  civil  rights. 

In  considering  domestic  subjection  it  is  also  necessary 
to  refer  to  the  status  of  the  child,  that  is,  the  infant  child, 
for  parent  and  adult  child  are  in  law,  except  for  purposes 
of  inheritance,  practically  altogether  strangers  to  each 
other.  As  a  holder  of  property  the  infant  child  occupies 
a  position  of  peculiar  independence  in  the  common  law, 
for  the  father  has  neither  usufruct  nor  guardianship 
(except  the  "socage"  guardianship  with  regard  to  land 
which  terminates  when  the  infant  attains  the  age  of 
fourteen);1  on  the  other  hand,  the  father  is  entitled  to 
the  earnings  of  the  child,  and  to  this  absolute  right  to  the 
earnings  corresponds  no  similarly  absolute  duty  to  sup- 
port, for  from  this  the  father  may  relieve  himself  by 
emancipating  the  child  and  thereby  surrendering  the 
right  to  earnings. 

The  personal  control  of  the  father  over  the  minor 
child  is  at  common  law  almost  unlimited;  even  an 
effectual  criminal  liability  probably  did  not  exist  except 
in  case  of  homicide,  the  policy  of  the  law  being  very 
decidedly  not  to  interfere  with  the  exercise  of  domestic 
authority.  There  was  thus  a  domestic  subjection  of  the 

1  The  father  was  formerly  regarded  as  the  guardian  of  the  child's  personal 
property;  see  Blackstone,  I,  461,  and  the  act  of  1670,  which  gave  him  the  right 
to  appoint  a  guardian  for  the  child  by  deed  or  will. 


THE  MODERN  CONCEPT  OF  SOCIAL  LEGISLATION          13 

severest  and  most  unqualified  kind.  This  has  been 
broken  in  upon  only  by  very  modern  legislation,  begin- 
ning with  the  criminal  punishment  of  cruelty,  and  more 
recently  establishing  a  system  of  public  care  of  juvenile 
dependents.  The  development  of  this  phase  of  law, 
which  may  be  said  to  have  started  with  the  Illinois  law 
of  1899,  is  in  its  very  beginning,  and  the  rights  of  the 
parent  will  undoubtedly  more  and  more  assume  the 
character  of  a  trust. 

This  completes  the  series  of  legal  changes  through 
which  personal  status  has  gone.  Liberty  and  equality 
have  received  practically  universal  recognition,  but  this 
has  come  only  in  the  nineteenth  century.  Race  alone 
remains  a  sinister  distinction  which  the  law  has  not  fully 
overcome,  and  which  in  some  respects  it  even  tends  to 
emphasize,  owing  to  the  greater  menace  of  foreign  race 
invasion  in  modern  times.  The  disability  of  the  child,  a 
transitory  status,  must  of  course  remain,  but  the  emanci- 
pation from  the  abuse  of  domestic  power  constitutes 
perhaps  the  most  marked  triumph  of  the  right  of  human 
personality. 

2.   FREEDOM  OF  THOUGHT 

All  American  bills  of  rights  give  prominent  places  to 
religious  liberty  and  the  freedom  of  the  press.  The 
guaranties  incorporated  both  the  achievement  and  aims 
of  constitutional  struggles  and  philosophical  theories  of 
natural  right.  They  represent  political  ideas  directly 
contrary  to  the  maxims  of  earlier  statecraft.  Until  far 


14  STANDARDS  OF  AMERICAN  LEGISLATION 

into  the  seventeenth  century  it  had  been  a  commonplace 
of  public  policy  that  the  safety  of  the  state  demands  the 
control  of  opinion.  The  view  that  religious  dissent  was 
a  factor  of  political  disintegration  found  expression  in 
the  English  Conformity  Acts  (reign  of  Elizabeth),  in  the 
maxim  accepted  in  the  Peace  of  Westphalia  (1648), 
cuius  regio,  eius  religio,  and  in  the  revocation  of  the 
French  Edict  of  Nantes  (1685).  Though  the  American 
colonists  had  sought  refuge  from  religious  oppression, 
Rhode  Island  alone  of  all  the  colonies  proclaimed  the  prin- 
ciple of  toleration.  To  the  present  day  Russia  regards 
heterodoxy  as  inimical  to  her  national  unity.  With  these 
historic  facts  in  view  we  can  better  appreciate  the  step  in 
advance  which  religious  liberty  represents,  and  yet  in  the 
course  of  the  nineteenth  century  toleration,  if  not  religious 
equality,  has  been  established  all  over  the  civilized  world, 
and  belief  and  worship  are  nowhere  any  longer  the  sub- 
jects of  penal  repression. 

As  regards  the  press,  Blackstone  tells  us  that  the  art 
of  printing,  soon  after  its  introduction,  was  looked  upon 
in  England  as  well  as  in  other  countries  as  "merely  a 
matter  of  state"  (Commentaries,  IV,  152,  note).  Its 
control  was  part  of  the  freely  conceded  jurisdiction  of 
the  Star  Chamber.  After  the  fall  of  the  latter,  its  con- 
trol simply  passed  to  Parliament,  which  exercised  it 
on  similar  principles.  The  essence  of  this  control  was 
that  nothing  was  to  be  printed  without  previous  license, 
and  by  the  removal  of  this  requirement  in  1694  the 
liberty  of  the  press  was  supposed  to  be  established. 


THE  MODERN  CONCEPT  OF  SOCIAL  LEGISLATION          15 

In  the  course  of  the  eighteenth  century,  however,  a 
further  struggle  took  place  for  greater  freedom  from 
responsibility,  which  resulted  in  the  liberalization  of  the 
law  of  libel.  Our  bills  of  rights  reflect  this  stage  of 
development:  they  guarantee  impunity  for  true  matter 
published,  but  only  if  published  with  good  motives. 
Here  most  of  our  constitutional  guaranties  stop;  but  the 
practice  of  the  nineteenth  century  has  proceeded  far 
beyond  this,  and  now,  generally  speaking,  not  only  is 
truth  an  absolute  justification,  but  the  defense  of  privilege 
is  recognized  to  the  widest  extent  in  every  kind  and  form 
of  public  criticism.1  The  free  expression  of  opinion  on 
political  subjects  is  guarded  with  possibly  even  greater 
jealousy  than  the  freedom  of  art,  literature,  and  science 
and  of  social  thought  and  agitation. 

In  view  of  the  wide  toleration  of  freedom  of  political 
agitation  which  public  opinion  demands,  the  law  of 
sedition,  even  where  not  formally  abrogated,  has  lost 
much  of  its  practical  importance;  when  in  1886  in 
England,  in  consequence  of  strong  public  labor  demon- 
strations, prosecutions  were  instituted  against  prominent 
leaders,  the  instructions  as  to  the  constituent  elements 
of  sedition  were  so  qualified  that  the  jury  could  hardly  do 
otherwise  than  render  a  verdict  of  not  guilty  (Reg.  v. 
Burns,  16  Cox  355;  Reg.  v.  Cunningham,  16  Cox  420; 
Russell  on  Crimes,  I,  557-65).  The  law  is  equally  obscure 
in  America,  where,  as  in  England,  the  conditions  under 

1  See  Schofield,  "Freedom  of  the  Press  in  the  United  States,"  Publications 
of  the  American  Sociological  Society,  LX,  67. 


16  STANDARDS  OF  AMERICAN  LEGISLATION 

which  government  has  been  carried  on  for  the  last  hun- 
dred years  have  rendered  political  repression  unnecessary 
or  inexpedient. 

We  have  here  a  complete  reversal  of  the  public  policies 
of  former  times,  which  yet  had  a  show  of  plausibility  in 
their  favor;  the  experience  of  a  great  war  shows  how 
effectually  after  all  for  a  time  at  least  public  opinion  can 
be  controlled  by  authority,  and  how  much  the  action  of 
the  state  in  a  certain  direction  can  be  strengthened 
thereby.  That  immediate  political  advantage  is  so 
readily  sacrificed  to  the  conviction  that  free  expression  of 
opinion  is  in  the  long  run  more  wholesome  to  the  consti- 
tution of  the  body  politic  is  one  of  the  most  remarkable 
achievements  of  democracy  and  of  education  in  public 
affairs.  That  the  achievement  is  not  altogether  safe 
from  attack  and  impairment  is  shown  by  the  public 
attitude  toward  anarchistic  agitation,  as  evidenced  by 
the  short-lived  red-flag  law  of  Massachusetts,  an  attitude 
comparable  to  that  of  those  of  our  state  constitutions 
which  temper  their  toleration  of  religious  dissent  by 
creating  certain  disabilities  for  atheists. 


The  establishment  of  the  right  of  personality  and  of 
freedom  of  personality  and  of  freedom  of  thought  are 
accomplished  in  the  main  by  the  removal  of  legal  and 
other  restraints,  and  the  positive  function  of  legislation  is 
relatively  slight;  the  advances  in  the  protection  of  human 
interests  which  follow  involve,  on  the  other  hand,  a 


THE  MODERN  CONCEPT  OF  SOCIAL  LEGISLATION          17 

constant  enlargement  of  the  field  of  legislative  activity 
and  control. 

3.   THE  REPRESSION  OF  UNTHRIFT  AND  DISSIPATION 

Certain  phases  of  this  legislative  policy  are  old  or 
even  antiquated;  thus  the  formerly  prevailing  type  of 
sumptuary  legislation  has  disappeared.  On  the  whole, 
however,  the  activity  of  the  state  against  the  three  great 
forms  of  unthrif t — gambling,  drink,  and  vice — has  gained 
in  incisiveness  and  extent,  and  its  greatest  development 
has  taken  place  in  the  American  democracy. 

The  relation  of  the  state  and  the  law  to  moral  ideals  is 
complex  and  peculiar.  The  main  motive  power  of  every 
political  organization  is  self-preservation,  which  produces 
the  type  of  the  state  best  fitted  for  the  maintenance  of 
communal  integrity.  After  some  type  has  once  success- 
fully established  itself  and  led  to  the  predominance  of 
one  element  of  the  body  politic,  the  instinct  for  self- 
preservation  again  makes  the  interest  of  that  element  the 
ruling  factor  of  state  policy.  Morality  as  represented  in 
law  thus  becomes  subordinate  to,  and  an  instrument  of, 
the  established  order  of  things;  and  in  all  communities 
it  tends  to  be  identified  with  authority,  the  family,  and 
property.  The  canons  of  justice  and  equity  presuppose 
respect  for  these  institutions,  and  purely  ethical  standards 
of  conduct  lie  outside  of  the  range  of  civil  obligations. 

In  European  systems  of  polity  the  place  of  morality 
was  further  determined  by  the  position  and  the  claims  of 
the  church.  The  Christian  religion  was  based  on  ethical 


l8  STANDARDS  OF  AMERICAN  LEGISLATION 

ideals;  ethical  thought  and  ethical  aspiration  were  in 
consequence  entirely  dominated  by  religion,  and  the  state 
considered  that  the  preservation  of  public  morals  was 
not  a  secular  function,  but  belonged  to  the  church. 

The  common  forms  of  moral  laxity  and  dissipation 
were  thus  regarded  as  sins  to  be  visited  by  spiritual 
penalties,  and  almost  the  entire  law  of  sex  relations, 
including  marriage,  fell  in  England  to  the  province  of 
ecclesiastical  jurisdiction,  and  the  marriage  law  has  to  the 
present  day  not  been  entirely  secularized.  It  is  also  to  be 
noted  that  non-forcible  injuries  were  only  gradually  drawn 
within  the  cognizance  of  the  King's  courts;  defamation 
(which  was  first  an  ecclesiastical  offense)  not  until  the 
seventeenth  century,  while  fraud  became  a  tort  only 
toward  the  end  of  the  eighteenth  century. 

It  was  only  after  the  Reformation  and  the  attendant 
relaxation  of  church  discipline  that  evil  practices  not 
directly  invading  other  persons'  rights  or  public  authority 
were  drawn  within  the  range  of  legislative  policy;  the 
first  attempts  to  repress  gambling  and  prostitution  date 
from  the  reign  of  Henry  VIII,  and  from  the  reign  of 
Edward  VI  on  the  liquor  trade  is  subjected  to  the  regime 
of  the  licensing  system. 

The  attitude  of  the  English  law  (and  that  of  Conti- 
nental countries  is  similar)  toward  gambling,  drink,  and 
vice  has  remained  tolerably  fixed  for  centuries;  the  liquor 
business  has  been  the  subject  of  constant  restrictive 
regulation,  while  gambling  and  vice  were  placed  beyond 
the  pale  of  legal  protection,  but  otherwise  tolerated  as 


THE  MODERN  CONCEPT  OF  SOCIAL  LEGISLATION         19 

long  as  outwardly  disorderly  practices  were  avoided. 
An  attitude  of  indulgence  toward  the  common  human 
weaknesses  became  part  of  the  established  order  of 
things. 

It  is  interesting  to  observe  how  with  the  advance 
of  democracy  the  legislative  policy  toward  these  evils 
becomes  gradually  more  aggressive.  The  mass  of  the 
people  struggling  for  material  prosperity  prize  the 
"middle-class"  virtues  of  habits  of  industry  and  domestic 
regularity,  and  they  seek  to  impress  their  ideals  upon  the 
legislation  which  they  control.  Thus  liquor  becomes  a 
conspicuous  issue  in  politics;  absolute  prohibition,  a 
radical  interference  with  personal  liberty,  is  first  intro- 
duced as  a  legislative  policy;  the  same  policy  is  applied 
to  gambling,  and  particularly  to  lotteries,  previously  used 
freely  as  a  means  of  raising  funds  for  public  purposes,  and 
in  many  states  the  prohibition  is  made  part  of  the  funda- 
mental law;  and  for  the  first  time  a  determined  crusade 
is  instituted  to  suppress  prostitution. 

The  standards  of  this  "morals"  legislation  are  perhaps 
all  the  more  advanced,  as  the  standards  of  enforcement 
are  not  equally  high.  This  may  be  due  to  our  peculiar 
governmental  organization,  which  divorces  legislative 
power  entirely  from  administrative  responsibility.  The 
formal  declaration  of  policies  is  insisted  upon  irrespective 
of  whether  they  can  be  carried  out  faithfully  or  even 
with  tolerable  success;  indeed,  the  advanced  policy  is 
sometimes  consented  to  only  upon  the  tacit  understand- 
ing that  in  actual  administration  it  will  be  somewhat 


20  STANDARDS  OF  AMERICAN  LEGISLATION 

relaxed.  The  result  is  inevitably  a  certain  demoraliza- 
tion of  governmental  standards,  but  the  system  makes 
possible  an  insistence  upon  high  abstract  moral  ideas, 
which  in  other  countries  is  deemed  impracticable,  and 
which  all  the  time  operates  as  an  educative  influence.1 
Even  with  its  imperfect  operation,  however,  this  phase  of 
legislative  policy  carries  with  it  encroachments  upon 
personal  liberty  which  would  not  have  been  ventured 
upon  by  less  democratic  systems  of  government. 

4.      THE  PROTECTION  OF  PUBLIC  HEALTH  AND   SAFETY 

The  large  amount  of  health  and  safety  legislation 
which  fills  modern  statute  books  represents  less  a  change 
of  legislative  policy  than  a  change  of  conditions  that  had 
to  be  met  by  an  extension  of  state  control.  In  principle 
the  exercise  of  public  power  for  the  protection  of  life 
and  limb  is  old-established,  but  prior  to  the  nineteenth 
century  there  was  relatively  little  occasion  for  its  practical 
application.  The  nineteenth  century  brought  two  con- 
ditions which  revolutionized  the  need  for  public  control: 
the  pressing  of  newly  invented  mechanical  forces  into 
the  service  of  industry  and  the  progress  of  science  in 
discovering  the  causes  of  disease  and  their  remedies. 

1  Under  the  German  ideal  of  scrupulously  correct  statutes  strictly 
enforced  legislation  is  likewise  an  educating  influence,  but  of  a  different  type; 
it  is  not  meant  to  represent  an  ideal  to  be  ultimately  attained,  but  a  practical 
norm  of  conduct;  just  and  fixed  rules,  the  most  powerful  and  insistent  expres- 
sion of  the  social  conscience,  are  to  operate  as  a  sort  of  secular  catechism,  and 
the  sense  of  formulated  boundaries  is  relied  upon  to  check  the  impulses  of 
unsettled  character — an  education  that  consists  in  the  subordination  of 
individual  tendencies  to  general  standards.  This  point  of  view  is  admirably 
developed  in  a  recent  German  treatise  (F.  W.  Forster,  Schuld  &  Siihne,  1911). 


THE  MODERN  CONCEPT  OF  SOCIAL  LEGISLATION         21 

The  imperative  necessity  of  developing  economic  resources 
retarded  adequate  protection  against  mechanical  dangers 
until  it  was  possible  to  combine  safety  with  the  effective 
carrying  on  of  industry;  the  former  had  to  yield  to  the 
latter;  this  is  well  illustrated  by  the  history  of  mining 
legislation.1  Sanitary  legislation  encountered  resistance 
on  the  part  of  personal  and  property  rights  as  well  as  of 
business  interests  by  reason  of  the  widespread  skepticism 
regarding  the  reality  of  the  alleged  dangers  or  the  efficacy 
of  the  proposed  remedies,  but  the  English  law  of  1848  and 
the  New  York  law  of  1857  firmly  established  the  prin- 
ciple of  an  elastic  administrative  control,  and  the  recent 
American  so-called  eugenics  legislation  indicates  the  long 
distance  that  we  have  traveled  in  the  direction  of  state 
interference  with  private  affairs.  Living  under  free 
institutions  we  submit  to  public  regulation  and  control  in 
ways  that  would  appear  inconceivable  to  the  spirit  of 
oriental  despotism;  it  is  well  known  what  deep-seated 
repugnance  and  resistance  of  the  native  population  to  the 
invasion  of  their  domestic  privacy  and  personal  habits 
English  health  officers  in  India  have  to  overcome  in  order 
to  enforce  the  sanitary  measures  necessary  to  prevent  the 
spread  of  infectious  or  contagious  disease.  Oriental  sys- 
tems of  polity  act  more  powerfully  upon  the  habits  of 
individual  life  than  modern  governments  do;  the  primal 
need  of  the  community  for  the  perpetuation  of  its  own 
existence  through  marriage  and  offspring  is  more  effec- 
tually secured  in  India  and  China  than  in  Western  Europe; 

1 R.  G.  Galloway,  History  of  Coal  Mining  in  Great  Britain,  1882. 


22  STANDARDS  OF  AMERICAN  LEGISLATION 

but  the  sanction  is  custom  and  not  law;  and  in  the  same 
way  the  sanitary  regime  of  the  Old  Testament  seems  to 
have  been  enforced  by  spiritual  threats  and  not  by 
secular  penalties.  Modern  policy  makes  legislative  com- 
pulsion coextensive  with  the  reciprocal  dependence  of 
men  upon  each  other's  standards  of  conduct  for  the 
preservation  of  the  health  and  safety  of  all,  and  with  the 
progress  of  invention  and  of  science  there  seems  to  be 
hardly  any  limit  to  that  independence.  Our  modern 
sanitary  laws  are  laws  in  the  real  sense  of  the  term, 
enforced  by  the  power  of  the  state.  As  such  they  rep- 
resent, if  not  a  new  policy,  yet  a  new  legislative  activity 
and  function. 

5.      THE   GROWTH  OF   SOCIAL  LEGISLATION 

The  development  of  phases  of  legislative  policy  thus 
far  traced  shows  two  main  tendencies :  the  steady  growth 
in  the  value  placed  upon  individual  human  personality 
and  the  shifting  of  the  idea  of  the  public  good  from  the 
security  of  the  state  and  established  order  to  the  welfare 
of  the  mass  of  the  people.  The  growth  of  social  legisla- 
tion combines  those  two  tendencies.  By  the  term  social 
legislation  we  understand  those  measures  which  are 
intended  for  the  relief  and  elevation  of  the  less  favored 
classes  of  the  community;  it  would  thus  be  held  to 
include  factory  laws,  but  hardly  legislation  for  the  safety 
of  passengers  on  railroads. 

The  lower  classes  (as  the  term  was  formerly  commonly 
used)  became  the  object  of  special  legislation  in  England 


THE  MODERN  CONCEPT  OF  SOCIAL  LEGISLATION          23 

after  the  Great  Plague;  but  the  policy  of  this  early 
legislation  was  repression  and  not  relief.  The  first  great 
systematic  relief  measure  was  the  English  Poor  Law  of 
1601  (43  Elizabeth,  ch.  2);  it  is  worth  noting  that  the 
principle  of  taxation  by  state  authority  for  the  relief  of 
the  poor  was  not  introduced  into  France  until  three 
hundred  years  later,  in  1905,  antecedent  to  the  separation 
of  church  and  state.  In  the  beginning  of  the  nineteenth 
century  England  inaugurated  a  new  phase  of  social 
legislation  by  her  child-labor  law  of  1802,  followed  by  a 
series  of  other  factory  laws. 

Yet  until  about  twenty  years  ago  the  term  social 
legislation  was  generally  unfamiliar  and  conveyed  little 
meaning  even  to  students  of  reform  movements.  The 
word  came  from  Germany,  and  there  originated  about 
the  beginning  of  the  eighties. 

More  particularly  the  new  term  social  legislation  was 
associated  with  the  workmen's  insurance  measures 
announced  by  the  message  of  November  17,  1881,  sub- 
mitted by  the  German  Emperor  to  the  Reichstag,  which 
provided  relief  hi  form  of  pensions  for  sickness  (1883), 
accident  (1884),  and  invalidity  and  old  age  (1889). 

The  purpose  of  these  measures  as  proclaimed  by  the 
imperial  message  was  to  counteract  social  democratic 
agitation  and  to  supplement  the  repressive  law  of  1878 
by  positive  and  constructive  state  action.  Other  Euro- 
pean countries  gradually  enacted  similar  legislation; 
in  England  compensation  for  industrial  accident  was  in- 
troduced in  1897,  old-age  pensions  in  1908,  and  insurance 


24  STANDARDS  OF  AMERICAN  LEGISLATION 

against  sickness  and  unemployment  in  1912.  The  Ameri- 
can states  have  so  far  approached  only  the  problem  of 
compensation  for  industrial  accident;  since  1910  about 
three-fourths  of  the  states  have  enacted  measures  of  that 
kind. 

What  was  the  special  feature  of  this  new  legislation 
that  marked  it  as  a  new  departure  in  legislative  policy  ? 
It  was  that  relief  changed  its  character.  Poor  relief  had 
been  a  matter  apart  from  industry;  it  had  stigmatized 
the  recipient  and  placed  him  under  disabilities;  the 
policy  of  the  English  poor-law  reform  of  1834  had  been  to 
make  it  in  addition  distasteful  and  repellent  (indoor 
relief).  The  new  pension  or  compensation  system 
carried  no  stigma  or  disability,  and  by  its  conditions  or 
terms  rather  seemed  to  be  in  the  nature  of  the  discharge 
of  a  debt  that  the  community  owed  to  its  members,  a 
deferred  payment  for  previous  inadequately  rewarded 
services,  or  a  compensation  for  some  kind  of  injustice 
suffered.  It  realized  the  idea  of  a  "respectable  provision 
unattended  with  degradation"  first  put  forward  in  183  7* 
and  again  advocated  in  the  Minority  Report  on  poor-law 
reform  under  the  name  of  an  "honorable  and  universal 
provision."  In  Germany  the  entire  legislation,  more- 
over, incorporated  important  features  of  insurance.  The 
recipient  of  pensions  or  other  allowances  upon  an  insur- 
ance basis  takes  them,  morally  as  well  as  legally,  as  a 
matter  of  right,  and  would  be  beholden  to  the  community 
merely  for  setting  the  plan  in  operation  and  administering 

1  See  Rose,  Rise  of  Democracy,  p.  100. 


THE  MODERN  CONCEPT  OF  SOCIAL  LEGISLATION         25 

it.  Every  contribution  from  the  employer  or  from  the 
community  alters  the  nature  of  the  allowance,  and  the 
tendency  in  England  and  America  has  been  to  relieve 
the  beneficiary  from  any  contribution  and  to  throw  the 
entire  burden  either  upon  the  community  (old-age 
pensions)  or  upon  the  employer  (workmen's  compen- 
sation). However  free  from  stigma,  the  provision  is  thus 
yet  in  the  nature  of  relief. 

In  Europe  relief  legislation  of  the  advanced  type  is  at 
present  as  firmly  established  as  sanitary  or  safety  legis- 
lation, the  defects  of  which  it  in  part  supplies,  while 
America  is  only  just  beginning  to  develop  that  part  of 
the  system  which  connects  most  closely  with  the  remedial 
methods  of  the  common  law. 

Even  in  Europe  a  sharp  line  is  still  drawn  between 
relief  and  the  larger  policy  of  using  the  power  of  the  state 
to  alter  the  economic  terms  of  the  labor  contract.  An 
entire  readjustment  or  reconstruction  of  the  economic 
relation  between  the  classes  is  not  as  yet,  generally 
speaking,  considered  as  part  of  a  practical  legislative 
program. 

Not  so  very  long  ago  this  larger  program  would  have 
been  sufficiently  condemned  by  being  characterized  as 
socialistic,  and  even  at  the  present  tune  there  is  an 
instinctive  perception  that  the  most  liberal  policy  of 
relief  is  in  principle  still  very  far  removed  from  an  attempt 
to  control  economic  relations  under  normal  conditions. 

We  are,  however,  quite  accustomed  to  one  form  of 
relief  which  is  really  undistinguishable  from  social 


26  STANDARDS  OF  AMERICAN  LEGISLATION 

reconstruction,  and  that  is  the  legislation  dealing  with 
children.  It  is  well  to  remember  that  factory  laws  began 
everywhere  with  the  regulation  of  child  labor,  and  that 
that  regulation  always  went  hand  in  hand  with  efforts  to 
secure  to  the  child  some  measure  of  education  and 
instruction.  And  with  regard  to  education,  the  American 
states,  at  a  period  when  they  represented  the  most 
individualistic  type  of  political  and  economic  organiza- 
tion, pursued  a  progressively  socialistic  policy,  shifting 
more  and  more  the  financial  burden  of  education  from 
the  family  to  the  community.  While  the  existence  of 
universal  suffrage  has  given  to  this  form  of  communism  a 
political  justification,  the  present  movement  for  voca- 
tional instruction  is  significant  in  frankly  abandoning  this 
basis  and  embarking  upon  schemes  of  economic  recon- 
struction, the  consequence  of  which  can  hardly  be  fore- 
seen. 

As  factory  legislation  in  England  began  with  the  regu- 
lation of  the  employment  of  children,  so  it  advanced 
farther  along  the  line  of  least  resistance  by  restricting  the 
hours  of  labor  of  women.  When  the  bill  which  resulted 
in  the  act  of  1844  was  agitated,  the  men  desired  the  like 
reduction  for  themselves,  but  were  satisfied  that  the 
legislation  should  be  confined  to  women  in  the  hope, 
which  events  justified,  that  the  legal  reduction  of  women's 
work  would  accomplish  without  legislation  the  same 
purpose  for  men.1  The  act  of  1844  had  been  preceded  by 
a  report  calling  attention  to  the  special  physical  considera- 

1  Hutchins  and  Harrison,  History  of  Factory  Legislation,  p.  186. 


THE  MODERN  CONCEPT  OF  SOCIAL  LEGISLATION          27 

tions  which  made  the  restriction  desirable  for  female 
employees.1  Whether  exclusively  on  this  ground  or  not, 
the  state  from  now  on  extended  its  guardianship  in  the 
matter  of  industrial  labor  over  both  women  and  young 
persons.  A  similar  development  took  place  in  Germany, 
where  a  maximum  work-day  for  women  in  factories  was 
established  in  1892. 

In  the  United  States  the  regulation  of  women's  hours 
of  labor  has  furnished  the  main  battle  ground  for  con- 
flicting theories  of  constitutional  right  and  power.  The 
course  of  decisions  proved  on  the  whole  favorable  to  state 
control.  Of  the  two  adverse  holdings,  that  of  Illinois, 
rendered  in  1895  (Ritchie  v.  People,  155  111.  98),  was 
greatly  weakened  if  not  nullified  in  1910  (Ritchie  v.  Way- 
man,  244  111.  509),  and  that  of  New  York,  relating  to 
night  work  (1907),  was  directly  overruled  in  1915  (People 
v.  Williams,  189  N.Y.  131;  People  v.  Charles  Schweinler 
Press,  214  N.Y.  395).  There  has,  however,  been  consid- 
erable inclination  to  support  this  legislation  on  the 
stricter  theories  of  the  police  power.  A  vast  array  of 
material  was  presented  to  the  Supreme  Court  to  prove 
the  detrimental  effect  of  prolonged  industrial  work  upon 
the  female  organism,  and  the  attempt  has  been  made 
to  connect,  not  only  the  prohibition  of  night  labor,  but 
also  minimum-wage  laws  with  the  protection  of  morals. 
It  is  therefore  significant  that  in  the  Oregon  case  (208 
U.S.  412)  Justice  Brewer  referred  to  female  peculiarities 
of  disposition  and  habits  of  life  which  remove  woman 

llbid.,  p.  84. 


28  STANDARDS  OF  AMERICAN  LEGISLATION 

from  equality  of  competition  and  justify  special  protec- 
tion to  secure  her  a  real  equality  of  rights  (p.  422). 

As  legislation  for  women  advances  from  the  ten-hour 
day  to  the  Saturday  half-holiday,  to  the  eight-hour  day 
(established  for  the  District  of  Columbia  in  1915),  to  the 
total  prohibition  of  night  work,  and  to  the  regulation 
of  wages,  the  narrow  foundation  of  the  old-established 
grounds  of  the  police  power  will  become  more  and  more 
untenable,  and  courts  will  be  forced  to  recognize  in  such 
laws  measures  of  social  and  economic  advancement,  and 
not  merely  measures  for  the  protection  of  health  or 
morals.  It  will  then  become  necessary  to  scrutinize  the 
ground  of  differentiation  between  men  and  women,  and 
particularly  to  examine  whether  such  differentiation 
implies  inferiority,  as  the  words  used  by  Justice  Brewer 
may  seem  to  indicate.  At  a  tune  when  women  are 
demanding  equal  political  rights  it  does  seem  incon- 
gruous to  insist  unduly  upon  infirmities  inherent  in  sex, 
and  it  will  be  fairer  to  support  legislative  discrimination 
for  their  protection  by  arguments  not  derogatory  to  other 
claims.  Such  arguments  can  well  be  brought  forward 
without  specious  pleading. 

Both  from  an  economic  and  from  the  historical  point 
of  view  the  status  of  women  is  constitutionally  different 
from  that  of  men:  economically,  because  the  temporary 
and  adventitious  character  of  women's  industrial  work, 
due  to  the  effect  of  marriage  upon  their  industrial  status, 
handicaps  their  capacity  for  combination,  and  hence 
their  capacity  for  efficient  self-help,  and  further  because 


THE  MODERN  CONCEPT  OF  SOCIAL  LEGISLATION         29 

the  state  has  a  distinct  interest  in  conserving  part  of  a 
woman's  time  and  strength  to  enable  her  more  adequately 
to  perform  her  non-industrial  functions,  her  duties  to 
the  home  and  the  family,  and  to  render  her  indispensable 
aid  in  the  furtherance  of  the  state's  child-welfare  policies; 
historically,  because  centuries  of  economic  dependence 
and  the  universal  conventional  discouragement  of  habits 
of  self-assertion  necessarily  removed  women  from  those 
ideals  of  individualism  which  were  in  America  supposed 
to  have  crystallized  into  constitutional  rights  and  limi- 
tations upon  the  legislative  power.  It  is  true  that  these 
conventions  with  regard  to  women  have  partly  been 
altered;  but  coincident  with  their  advance  toward 
greater  independence  has  been  a  general  modification  of 
the  ideals  of  individualism.  Nothing  could  be  more 
characteristic  of  that  coincidence  than  the  fact  that  the 
legislature  of  Illinois,  on  March  22,  1872,  passed  an  act 
declaring  that  sex  should  not  be  a  bar  to  any  occupation 
or  employment,  and  five  days  thereafter,  on  March  27, 
1872,  passed  another  act  forbidding  the  employment  of 
women  in  mines — enactments  opposed  to  each  other  upon 
a  mechanical  view  of  liberty,  and  yet  quite  harmonious 
in  spirit  as  making  for  a  larger  freedom  of  women.  It  is 
obvious  that  upon  any  large  view  women  stand  on  a 
different  footing  from  men  as  regards  the  exercise  of 
legislative  protection.  In  all  European  countries  and  by 
the  international  conventions  regarding  industrial  labor 
this  has  been  recognized.  It  follows  that  a  very  much 
farther  reaching  control  over  women  than  we  have  at 


30  STANDARDS  OF  AMERICAN  LEGISLATION 

present  would  leave  unprejudiced  the  problem  of  legis- 
lative policy  with  reference  to  adult  men. 

Germany,  whose  program  of  social  legislation  has  been 
more  systematic  and  comprehensive  than  that  of  any 
other  country,  has  yet  so  far  firmly  adhered  to  the 
principle  of  non-interference  of  the  state  in  the  terms  of 
the  wage  contract  between  employer  and  adult  male 
employee  except  for  the  purpose  of  preventing  abuses 
in  methods  of  payment  (truck  acts).  Reduced  hours  of 
labor  and  increased  pay  are  left  to  free  bargaining  between 
the  parties.  France  has  been,  if  possible,  even  more 
individualistic  than  Germany  in  this  respect.  Until 
recently  English  legislation  pursued  the  same  policy,  but 
departed  from  it  hi  establishing  the  eight-hour  day  for 
coal  mines  in  1908  (distinctly  not  a  sanitary  measure) 
and  in  applying  the  trade-board  system  for  fixing  mini- 
mum wages  in  sweated  trades  to  men  as  well  as  women, 
and  enacting  a  similar  wage  act  for  coal  miners  (Acts  of 
1909  and  1912),  while  constitutional  scruples  have  con- 
fined similar  legislation  in  America  to  women.  England 
has  indeed  entered  upon  a  deliberate  policy  of  economic 
reconstruction  in  an  entirely  distinct  field  of  legislation, 
that  of  land  tenure,  and  has  undertaken  to  alter  funda- 
mentally the  status  of  an  entire  class  of  the  population. 
The  agrarian  legislation  for  Ireland  culminating  in  the 
measures  of  1881  and  1897,  dictated  by  political  con- 
siderations, was  in  1912  upon  purely  economic  grounds 
applied  to  Scotland,  and  the  extension  of  a  similar 
system  to  England  will  perhaps  be  hastened  by  the 


THE  MODERN  CONCEPT  OF  SOCIAL  LEGISLATION         31 

necessity  of  making  the  national  food  supply  less  de- 
pendent upon  foreign  imports. 

Here  is  legislation  of  a  purely  socialistic  type  showing 
the  liability  of  even  apparently  most  firmly  fixed  policies 
to  be  revolutionized  by  change  of  conditions  or  change  of 
sentiment. 

Why  should  industrial  legislation  be  exempt  from  like 
revolutionary  change  ?  It  is  true  that  the  state  has  thus 
far  departed  very  little  from  its  attitude  of  neutrality  in 
the  struggle  between  capital  and  labor.  Of  the  things 
that  labor  most  desires,  naming  them  in  the  order  of  the 
strength  of  the  desire — chance  of  employment,  security 
of  employment,  better  remuneration,  lessened  toil,  fair- 
ness of  methods,  safe  and  sanitary  conditions,  and  relief 
in  distress — it  appears  that  even  the  most  advanced  type 
of  European  social  legislation  undertakes  to  secure  less 
than  one-half,  being  the  half  less  prized  by  labor.  If  the 
reason  for  this  is  that  the  conditions  for  radical  improve- 
ment are  or  are  believed  to  be  beyond  legislative  control, 
or  that  the  effectual  remedy  is  unknown,  legislative 
inactivity  cannot  be  said  to  be  a  matter  of  deliberate 
policy  of  self-imposed  limitation,  but  merely  the  conse- 
quence of  imperfect  power  and  knowledge,  and  advance 
in  legislation  would  merely  wait  upon  advance  in  knowl- 
edge and  efficiency.  At  any  rate,  the  possibility  of 
embarking  upon  new  policies  seems  to  be  foreshadowed 
both  by  the  growing  insistence  of  what  is  called  the 
new  social  conscience  and  by  the  fact  that  the 
widest  possible  scope  of  state  control  is  the  avowed 


32  STANDARDS  OF  AMERICAN  LEGISLATION 

demand  of  a  political  party  which  is  constantly  grow- 
ing in  strength. 


If  this  brief  outline  has  correctly  characterized  the 
various  aspects  of  social  legislation  and  the  stages  in  its 
progress,  it  is  also  easier  to  understand  the  position  of 
American  courts.  In  their  hostile  or  suspicious  attitude 
toward  legislation  regulating  hours  of  labor  and  payment 
of  wages  which  they  regarded  as  involving  merely 
economic  issues  they  resisted  the  beginnings  of  a  novel 
function  of  state  control,  and  if  they  nullified  even 
reasonable  and  necessary  measures  it  was  perhaps 
because  they  were  unwilling  to  concede  the  first  steps  in 
a  development  the  scope  of  which  they  could  neither 
define  nor  foresee,  and  the  full  course  of  which  must 
justly  have  appeared  to  them  as  revolutionary. 

But  a  larger  view  of  changes  and  developments  than 
courts  are  in  the  habit  of  taking  must  also  make  us 
extremely  skeptical  with  regard  to  the  fundamental 
assumption  underlying  their  method  of  approaching 
legislation.  Into  the  general  clauses  of  the  constitutions 
they  have  read  a  purpose  of  fixing  economic  policies 
which,  however  firmly  rooted  in  habits  of  thought  or 
structure  of  society,  are  by  their  very  nature  unfit  to  be 
identified  with  the  relatively  immutable  concept  of  due 
process.  Where  the  makers  of  constitutions  did  intend 
to  establish  policies,  they  did  so  in  express  terms :  freedom 
of  speech  and  press,  religious  liberty,  the  favor  to  the 


THE  MODERN  CONCEPT  OF  SOCIAL  LEGISLATION         33 

accused  in  criminal  proceedings — these  we  find  guaranteed 
in  specific  clauses;  and  nothing  was  guaranteed  that  had 
not  at  some  time  been  a  live  issue.  It  was  foreign  to  their 
minds  to  foreclose  issues  that  no  one  could  foresee.  Due 
process  was  an  idea  centuries  old  and  meant  to  last  for 
centuries;  the  idea  that  it  should  be  subject  to  amend- 
ments, qualifications,  or  exceptions  is  utterly  incongruous. 
That  the  clause  should  have  been  seized  upon  to  pro- 
tect policies  which  to  the  courts  seemed  essential  to  the 
social  structure  they  were  used  to  was  perhaps  not 
unnatural;  but  it  was  certainly  an  extreme  step  for  the 
Court  of  Appeals  of  New  York  to  identify  the  constitution 
with  a  policy  which  it  recognized  as  standing  in  need  of  a 
change.  In  any  event,  the  attempt  of  the  courts  to 
check  modern  social  legislation  by  constitutional  principles 
can  be  properly  estimated  only  if  we  recognize  in  it  the 
exercise  of  a  political,  and  not  a  strictly  judicial,  function. 


CHAPTER  II 
THE  COMMON  LAW  AND  PUBLIC  POLICY 

It  has  been  said  that  our  legal  system  might  be  con- 
ceived as  existing  without  the  statute  book,  but  not 
without  the  common  law.1  The  statement  implies,  not 
merely  that  legislation  constantly  presupposes  the  exist- 
ence of  common-law  rules  to  aid  in  its  operation,  but  also 
that  the  common  law  contains  in  itself,  though  imper- 
fectly, the  essential  elements  of  justice  and  policy.  By 
the  common  law  we  should  then  have  to  understand  the 
entire  aggregate  of  unwritten  principles  and  rules. 

At  an  earlier  stage  of  legal  history  it  would  have  been 
less  possible  to  identify  unwritten  law  and  common  law. 
The  latter  term  indicated  a  distinction  from  local  law, 
the  vitality  of  which  declined  with  the  centralization  of 
justice  in  the  King's  courts,  until  local  customs  as  well  as 
municipal  by-laws  became  negligible  factors  in  the  legal 
system,  in  strong  contrast  to  the  development  in  Ger- 
many, where  municipal  custom  and  regulation  originated 
much  that  became  subsequently  incorporated  in  state-  or 
nation-wide  institutions.2 

1  Geldart,  Elements  of  English  Law,  p.  9. 

2  Gierke.  Genossenschaftsrecht,  II,  sec.  28.    The  present  German  system  of 
land-title  registration,  similar  to  the  so-called  Torrens  system,  seems  to  have 
originated  in  the  German  cities  (Stobbe,  Privatrecht,  sec.  94).    The  English 
Act  of  1535  for  the  enrolment  of  bargains  and  sales  (27  H.  8.,  ch.  16)  contains 

34 


THE  COMMON  LAW  AND  PUBLIC  POLICY  35 

Long  after  the  decline  of  local  law  there  remained, 
however,  two  strong  rivals  of  the  common  law  of  the 
King's  courts  in  the  royal  prerogative  and  the  church. 
Apart  from  the  important  matter  of  testamentary  juris- 
diction, the  church  not  only  guarded  the  integrity  of 
faith,  but  looked  after  public  morals,  civilly  by  its 
jurisdiction  over  marriage  and  divorce,  criminally  by 
punishing  bigamy,  adultery,  and  incest,  while  crimes  of 
violence,  such  as  rape,  and  for  some  reason  also  the  crime 
against  nature,  fell  under  secular  cognizance.  The  gaps 
left  by  the  disappearance  of  the  punitive  jurisdiction  of 
the  church  in  1640  were  filled  by  legislation,  but  in  a 
somewhat  haphazard  manner,  so  that  in  England  not 
only  adultery,  but  even  incest,  was  not  brought  under 
the  criminal  law — the  latter  omission  clearly  not  the 
result  of  deliberate  policy,  and  cured  in  1908. 

EQUITY 

The  royal  power  was  for  a  long  time  regarded  as  an 
organ  of  supplementary  justice — a  theory  which  now 
survives  in  the  pardoning  power,  and  to  which  also  the 
former  practice  of  special  remedial  legislation  may  be 
traced.  The  exercise  of  the  royal  power  for  the  purpose 
of  modifying  the  rigor  of  the  common  law  by  less  formal- 
istic  principles  giving  effect  to  intent,  good  faith,  and 

a  saving  for  cities,  boroughs,  or  towns  corporate  wherein  the  mayors,  recorders, 
chamberlains,  bailiffs,  or  other  officers  have  authority  or  have  lawfully  used  to 
enrol  any  evidences,  deeds,  or  other  writings  within  their  precincts  or  limits. 
We  know  nothing  further  of  these  recording  systems,  and  so  far  from  exercising 
any  influence  upon  general  practice,  they  seem  to  have  disappeared. 


36  STANDARDS  OF  AMERICAN  LEGISLATION 

trust  grew  at  a  relatively  early  period  into  a  distinct  and 
co-ordinate  system  of  remedial  justice  under  the  name  of 
equity.  When  Blackstone  speaks  of  the  High  Court  of 
Chancery  as  in  matters  of  civil  property  by  much  the 
most  important  of  any  of  the  King's  courts,  he  might 
have  added  that  equity  contributed  practically  nothing 
to  English  law  outside  the  sphere  of  property  interests. 
The  jurisdiction  exercised  over  charitable  trusts  was 
avowedly  limited  to  maintaining  the  original  purposes  of 
the  founder  unimpaired,  and  it  was  a  deliberate  and 
probably  wise  construction  of  judicial  powers  that  kept 
the  court  from  meddling  with  the  terms  of  endowments; 
even  where  a  power  of  regulation  was  expressly  given  it 
was  said  that  alteration  still  belonged  to  Parliament  (2 
Bro.  C.C.  662),  but  the  doctrine  of  cy  pres  was  for  a  long 
time  overscrupulously  applied,  particularly  hi  the  matter 
of  the  instruction  permissible  in  grammar  schools  (cf. 
A.-G.  v.  Whiteley,  n  Ves.  241, 1805,  with  the  more  liberal 
doctrine  recognized  in  A.-G.  v.  Dixie,  3  Russ.  534,  n. 
1825),  and  the  failure  to  develop  principles  for  dealing 
with  schemes  which,  without  having  become  incapable  of 
execution,  had  outlived  their  usefulness1  eventually  led 
to  legislative  interference  and  to  the  creation  of  adminis- 
trative organs  of  control.  And  while  no  one  could  justly 
expect  that  prior  to  the  nineteenth  century  modern  ideas 
of  charity  should  have  been  entertained  or  promoted 
by  the  Lord  Chancellor  in  the  exercise  of  his  sporadic 

1  Neither  the  consent  of  all  members  of  the  parish  nor  even  that  of  the 
heir  of  the  founder  warrants  a  departure  from  the  original  scheme  (i  Vern. 
35,  45). 


THE  COMMON  LAW  AND  PUBLIC  POLICY  37 

jurisdiction,  it  still  must  be  noted  that  equity  never 
gave  expression  to  a  single  opinion  on  the  personal  idea 
of  charity  administration;  it  is  very  probable  that  no 
application  was  ever  made  to  the  court  on  that  score. 
The  jurisdiction  of  equity  over  married  women  is  like- 
wise characteristic  for  its  close  confinement  to  property 
interests.  It  was  only  the  wife  with  invested  wealth 
who  was  protected  against  the  husband's  control  and 
against  his  creditors.  It  should  not  have  been  impossible 
for  equity  to  extend  the  like  protection  to  the  married 
woman's  independent  earnings,  but  this  step  was  never 
taken.  It  was  this  defect,  more  strongly  felt  in  England 
than  in  America,  which  led  to  the  first  English  Married 
Women's  Act  in  1870.  With  regard  to  infants  the  court 
of  equity  represented  the  sovereign  as  parens  patriae,  and 
the  possession  of  an  estate  has  been  held  not  to  be  indis- 
pensable as  a  foundation  of  equitable  jurisdiction  (1892, 
2  Ch.  496,  512).  Judicial  protection  was  thus  afforded 
against  the  abuse  of  paternal  authority  before  the  legis- 
lature intervened  for  that  purpose  (10  Ves.  52).  But 
equity  did  not  as  a  rule  concern  itself  with  children  who 
had  no  property,  and  the  modern  advances  in  the  pro- 
tection of  children's  personal  rights  and  interests  owe 
nothing  to  equitable  principles.  There  is  a  striking  con- 
trast between  the  strong  influence  which  equity  has  had 
on  property  legislation,  which  often  simply  copied  its 
doctrines,  and  the  almost  entire  absence  of  any  influence 
upon  modern  legislative  policy  outside  of  the  domain  of 
property  rights. 


38  STANDARDS  OF  AMERICAN  LEGISLATION 

ROYAL  POLICE  POWER 

While  the  royal  power  of  granting  equitable  relief  soon 
became  merged  in  a  regular  judicial  power,  the  royal 
power  of  controlling  the  internal  police  of  the  realm  con- 
tinued for  a  long  time  as  a  prerogative  outside  and 
independent  of  the  ordinary  tribunals.  The  power  was 
exercised  by  the  King  through  his  council  sitting  in  the 
Star  Chamber,  a  name  that  has  come  to  be  associated 
with  arbitrary  and  despotic  methods  of  inquiry  and 
punishment  in  consequence  of  the  political  struggles  in 
which  the  Crown  found  itself  engaged  in  the  seventeenth 
century.  But  for  a  long  period  of  its  existence  the  Star 
Chamber  exercised  what  was  at  the  time  considered  a 
normal  and  legitimate  function  of  state,  namely,  an 
inherent  executive  police  power.  The  duty  and  power  of 
guarding  the  public  welfare  did  not  necessarily  have  to 
wait  upon  legislative  or  judicial  action,  even  though 
repression  involved  punitive  processes.  The  theory  is 
now  otherwise,  but  when  it  flourished  it  was  no  usurpa- 
tion and  was  frequently  of  beneficent  operation;  it  was 
an  integral  factor  in  the  system  of  public  policy.  It  was 
also  a  result  of  prevailing  ideas  of  public  policy  that  the 
welfare  of  the  realm  seemed  more  identified  with  the 
maintenance  of  established  order  than  with  the  advance- 
ment of  the  condition  of  the  people.  In  historic  retro- 
spect, at  least,  political  agitation  and  disturbance  seem 
to  engage  a  large  share  of  the  attention  of  the  Star 
Chamber,  and  riot,  sedition,  seditious  libel,  and  the  license 
of  the  printing  press  play  a  considerable  part  in  its 


THE  COMMON  LAW  AND  PUBLIC  POLICY  39 

jurisdiction.  After  the  fall  of  the  Star  Chamber  in  1640 
the  censorship  of  the  press  was  first  placed  on  a  statutory 
basis  and  then  abolished.  If  the  censorship  of  plays 
remained  in  the  hands  of  the  King's  Chamberlain,  this 
was  due  to  the  historic  attachment  of  the  profession  of 
actors  to  the  court,  and  not  to  any  theory  of  royal  power. 
The  law  of  libel,  sedition,  and  riot  came  to  be  administered 
by  common-law  courts.  The  law  of  libel  became  politi- 
cally conspicuous  through  the  conflict  as  to  the  respective 
provinces  of  court  and  jury  which  was  settled  by  Fox's 
Libel  Act  of  1792  and  left  its  traces  in  the  bills  of  rights 
of  American  constitutions;  the  law  of  sedition  lost  its 
practical  importance  through  the  growing  freedom  of 
political  agitation.  The  public  policy  for  which  the  Star 
Chamber  stood  has  given  way  to  different  governmental 
purposes  and  ideals. 

CORPORATIONS 

Another  phase  of  public  policy  was  controlled  by  the 
royal  power  as  a  consequence  of  the  legal  theory  of  cor- 
porate capacity.  In  its  various  forms  of  ecclesiastical 
bodies  and  foundations,  gilds,  municipalities,  trading 
companies,  or  business  organizations,  the  corporation  has 
always  presented  the  same  problem  of  how  to  check  the 
tendency  of  group  action  to  undermine  the  liberty  of  the 
individual  or  to  rival  the  political  power  of  the  state. 
The  somewhat  vague  theory  of  the  later  Middle  Ages 
that  communal  organization  not  sanctioned  by  prescrip- 
tion or  royal  license  was  illegal  was  at  least  from  the 


40  STANDARDS  OF  AMERICAN  LEGISLATION 

fifteenth  century  on  supplemented  by  the  technical 
doctrine,  developed  under  canonist  influences,  that  there 
is  no  capacity  to  act  as  a  body  corporate  without 
positive  authorization.  To  grant  this  authority  has 
remained  in  England  an  attribute  of  the  royal  preroga- 
tive, though  extensively  and,  where  coupled  with  other 
privileges  inconsistent  with  the  common  law,  necessarily 
exercised  in  concurrence  with  Parliament;  in  America 
the  necessary  authority  is  granted  by  the  legislature 
through  special  charters  or  general  laws. 

It  is  hardly  possible  to  overestimate  the  theory  that 
corporate  existence  depends  on  positive  sanction  as  a 
factor  in  public  and  legislative  policy.  It  is  natural  that 
the  charter  or  incorporation  law  should  be  made  the 
vehicle  of  restraints  or  regulations  which  might  not  be 
readily  imposed  upon  natural  persons  acting  on  their  own 
initiative,  and  the  course  of  legislative  history  bears  this 
out.  So  far  as  the  businesses  of  banking  and  insurance 
have  been  carried  on  under  corporate  charters  they  have 
been  the  subject  of  thorough  and  detailed  regulation, 
while  private  banking  and  the  unincorporated  forms  of 
fraternal  insurance  remain  to  the  present  day  in  the  main 
unregulated  and  uncontrolled.  Railroads  have  been 
built  and  operated  from  the  beginning  by  corporate  enter- 
prise; thus  legislation  was  called  for  and  was  made  the 
instrument  of  exercising  public  power  over  operation 
service  and  in  some  cases  over  rates;  the  express  business, 
on  the  other  hand,  which  happened  to  be  carried  on 
chiefly  by  unincorporated  concerns,  or  at  least  did  not 


THE  COMMON  LAW  AND  PUBLIC  POLICY  41 

seek  special  charters,  practically  escaped  regulation  and 
was  not  placed  under  administrative  jurisdiction  until 
the  Rate  Act  of  1906;  this  tends  to  show  that  it  was  not 
merely  the  fact  of  being  a  common  carrier  subject  to 
special  power,  but  more  particularly  the  fact  of  being  a 
corporation  asking  for  powers,  which  subjected  the  rail- 
road company  to  the  extensive  and  intensive  legislative 
regime  which  it  has  experienced. 

Moreover,  a  corporation  once  organized  is,  without 
positive  legislation,  subject  to  peculiar  remedies  at  the 
hands  of  the  state.  Both  common-law  courts  and  courts 
of  equity  can  entertain  proceedings  brought  by  the 
attorney-general  to  inhibit  corporate  misdoings.  The 
information  in  the  nature  of  a  quo  warranto  is  well 
established,  and  the  proceeding  in  equity  was  used  in 
1874  in  the  notable  case  of  the  railroad  companies  of 
Wisconsin  (35  Wis.  425-608).  That  case  reviewed  the 
history  of  the  law  very  fully  and  concluded  (whether 
correctly  or  incorrectly  does  not  matter  for  the  present 
purpose)  that  irrespective  of  statute  the  courts  of  equity 
had  power  to  deal  with  the  illegal  conduct  of  corporations, 
and  this  without  the  showing  of  any  specific  injury  to  the 
public.  There  are  also  later  American  cases  in  which 
the  corporate  character  of  an  offender  has  been  held  to 
justify  a  resort  to  equitable  relief  where  the  same  would 
be  denied  against  an  individual  (compare  143  Ind.  98 
with  155  Ind.  526).  Considering  the  great  value  which 
is  now  commonly  attached  to  the  possibility  of  the 
enforcement  of  law  through  the  equitable  process  of 


42  STANDARDS  OF  AMERICAN  LEGISLATION 

injunction,  so  much  more  familiar  and  less  technical 
than  the  proceeding  in  quo  warranto,  the  doctrine  that 
corporations  are  peculiarly  subject  to  the  exercise  of  the 
power  need  not  be  very  firmly  established  or  ancient  to 
be  availed  of  with  eagerness,  and  the  precedents  are 
sufficient  to  support  a  liberal  exercise  of  jurisdiction.  It 
would  of  course  be  impossible  to  contend  as  against 
individuals  for  an  equally  comprehensive  power  to  restrain 
illegal  conduct  in  equity.  In  the  case  of  a  corporation  it 
will  also  often  be  possible  to  construe  charter  limitations 
in  conformity  to  public  policy,  and  thus  to  identify 
injury  to  public  interests  with  illegality;  corporations 
organized  for  the  purpose  of  holding  or  dealing  in  real 
estate  were  thus  dealt  with  in  Illinois.  Altogether,  if 
there  lurks  in  corporate  organization  a  special  danger  to 
the  public,  it  also  affords  the  legal  ways  and  means  for 
public  control  of  exceptional  strength. 

LAW   OF   THE   COURTS   OF   COMMON  LAW 

We  finally  come  to  that  portion  of  the  unwritten  law 
which  was  administered  in  the  King's  courts,  and  which 
constitutes  the  common  law  in  the  narrower  sense  of  the 
term.  Like  equity,  and  unlike  the  jurisdiction  of  the 
King  in  council,  it  is  a  system  of  justice  rather  than  of 
policy,  and  its  policy  is  not  always  easy  to  discover. 
Custom  and  precedent  frequently  stand  in  place  of  reason 
and  expediency.  Justice  in  some  cases  means  merely  a 
rule  justly,  i.e.,  impartially,  administered,  and  not  a  just 
rule;  thus  it  would  be  difficult  to  imagine  a  more  flagrant 


THE  COMMON  LAW  AND  PUBLIC  POLICY  43 

injustice  than_that  a  husband  should  have  absolute^ 
power  to  will  away  from  his  widow  the  entire  personal 
estate  which  she  brought  into  ^  ^n.rriage  and  leave  her 
penniless;  and  yet  that  was  the  law  of  F^gland.1  Par- 
ticularly in  the  domain  of  family  law  the  peculiar  common- 
law  doctrines  elude  rational  explanation.  For  the  rule 
of  primogeniture  and  the  husband's  property  in  the  wife's 
chattels — both  foreign  to  the  Continental  systems  and 
contrary  to  almost  universal  notions  of  equity — Pollock 
and  Maitland  suggest  no  better  reason  than  that  the 
courts  chose  a  "short  cut"  in  preference  to  complex  and 
involved  arrangements  (History  of  the  Common  Law, 
II,  272,  430). 

It  is  not  inconceivable  that  a  highly  centralized  and 
powerful  court  should  set  the  considerations  of  easy 
administration  of  justice  above  the  highest  type  of  sub- 
stantive justice  and  should  prefer  symmetry  and  sim- 
plicity of  the  system  to  its  close  adjustment  to  varying 
conditions.  Such  a  tendency  certainly  manifests  itself 
in  some  of  the  most  characteristic  phases  of  judge-made 
law,  although  it  is  also  possible  to  cite  instances  to  the 
contrary.  The  rule  against  perpetuities  furnishes  illustra- 
tions in  pnint.  The  rule  sets  a  limit  in  point  of  tune  to 
the  tying  up  of  property.  The  period  was  finally  fixed 
at  the  duration  of  lives  in  being  at  the  creation  of  the 

xLord  Ellenborough  in  Doe  v.  Barford,  4  M.  &  S.  10:  "I  remember  a 
case  some  years  ago  of  a  sailor  who  made  his  will  in  favor  of  a  woman  with 
whom  he  cohabited,  and  afterwards  went  to  the  West  Indies  and  married  a 
woman  of  considerable  substance,  and  it  was  held,  notwithstanding  the  hard- 
ship of  the  case,  that  the  will  swept  away  from  the  widow  every  shilling  of  the 
property." 


44  STANDARDS  OF  AMERICAN  LEGISLATION 

interest  and  a  gross  term  of  twenty-one  years  in  addition 
thereto.  The  period  clearly  indicates  that  the  rule  was 
intended  to  apply  to  family  settlements,  and  analogous 
rules  in  other  legal  systems  have  no  other  application. 
Yet  after  the  rule  had  become  established,  it  was  held  to 
control  an  option  agreement  entered  into  by  a  corporation 
— a  purely  commercial  transaction.  The  criterion  of 
lives  in  being  is  quite  unsuitable  in  such  a  case,  and  the 
economic  value  of  the  rule  so  applied,  if  any,  is  extremely 
slight.  It  is  a  case  of  a  purely  mechanical  application  of 
a  doctrine;  yet  no  question  has  been  made  of  the  propriety 
of  the  extension  (L.  &*  S.  W.  R.  Co.  v.  Gomm,  20  Ch.  D. 
562). 

After  it  had  once  been  settled  that  the  transgression 
of  the  limits  of  the  rule  by  so  little  as  the  fraction  of  a 
year  or  month  would  avoid  the  entire  settlement,  the 
same  rigorous  principle  was  applied  to  cases  where, 
without  violation  of  the  essence  of  the  scheme,  a  cutting 
down  of  the  period  to  its  permissible  limit  would  have 
served  every  end.  The  question  whether  the  existence 
of  powers  of  sale  making  the  concrete  property,  as  dis- 
tinguished from  the  fund,  freely  alienable  should  not 
legitimately  affect  the  operation  of  the  rule  has  not  even 
been  discussed.  The  rule  has  ceased  to  be  a  principle, 
and  the  courts  have  lost  all  control  over  it. 

A  centralized  system  of  justice  is  naturally  unfavorable 
to  differentiation  of  legal  rules.  The  common  law  differs 
from  other  modern  systems  in  having  no  distinct  com- 
mercial law.  The  doctrine  ol  market  overt  is,  however, 


THE  COMMON  LAW  AND  PUBLIC  POLICY  45 

practically  a  relic  of  old  commercial  custom.  It  recog- 
nized in  favor  of  the  purchasing  public  the  principle  that 
the  possession  of  the  selling  merchant  should  be  equiva- 
lent to  title.  It  applied  to  sales  at  fairs  and  in  open  shops 
in  the  city  of  London,1  and  thus  covered  a  substantial 
proportion  of  retail  sales.  But  with  the  practical  dis- 
appearance of  fairs  and  the  systematic  discouragement 
of  local  customs  the  doctrine  has  ceased  to  be  of  impor- 
tance in  England  and  never  gained  any  footing  in  America, 
while  it  has  become  the  principle  of  the  French  and 
German  codes.  The  rule  caveat  emptor.  whereby  the 
purchaser  assnmps  the  risk  of  VnVMpn  defert^  may  he  a 
proper  rule  betweerj  persons  fjpali'ng  nt  nrmVi  1mgth  hirt 
it  .can  hardly  be  defended  as  bftt-wfiftT>  fj^  professional 
dealers  selling  in  the  way  of  trade.  In  the  Roman  law 
the  difference  was  recognized  by  the  reversal  of  the 
general  rule  in  the  case  of  market  transactions,  and 
gradually  the  special  rule  thus  established  by  the  market 
police,  the  aedilician  edict,  became  part  of  the  common 
law  and  of  the  modern  civil  codes,  while  the  caveat 
emptor  rule  remains  the  rule  of  the  English  common  law 
with  only  very  slight  qualifications.  If  the  protection  of 
the  bona  fide  purchaser  is  thus  much  more  adequate  in 
the  civil  law  than  in  the  common  law,  it  is  because  the 
common  law  eliminated,  while  the  civil  law  generalized, 
a  more  favorable  rule  demanded  by  special  conditions. 

We  should  guard  against  too  readily  ascribing  rules  to 
a  distinct  policy.    A  rule  analogous  to  that  of  caveat 

'Pease,  "Market  Overt  in  London,"  31  Law  Quarterly  Review  270. 


46  STANDARDS  OF  AMERICAN  LEGISLATION 

emptor  applies  to  leases,  the  landlord  not  being  bound-in 
any  way  to  let  the  demised  premises  in  a  suitable  condition 
for  the  purposes  for  which  he  knows  the  tenant  intends  to 
use  them.  It  might  be  tempting  to  attribute  this  rule  to 
a  conscious  or  unconscious  bias  in  favor  of  the  land- 
holding  class.1  But  it  would  be  quite  impossible  to  prove 
such  a  bias.  The  rule  apparently  did  not  receive  distinct 
judicial  expression  until  1843  (Sutton  v.  Temple,  12  M.  & 
W.  52;  Hart  v.  Windsor,  12  M.  &  W.  68),  and  then  was 
rather  assumed  than  argued,  the  only  reason  given  being 
a  purely  juristic  one,  namely,  that  the  term  demise 
carried  only  a  warranty  of  title,  and  therefore  not  any 
assurance  of  quality.  If  we  concede,  however,  that  favor 
to  the  landlord  class  did  not  even  subconsciously  bias  the 
judicial  mind,  we  should  also  notice  that  there  was  quite 
remote  from  the  judicial  mind  the  thought  of  the  poorer 
classes  of  dwellers  in  city  tenements,  whose  interests 
demanded  that  the  obligation  thus  judicially  denied 
should  be  placed  upon  the  landlord. 

A  similar  observation  may  be  made  with  regard  to 
the  establishment  of  the  feUow-servajitjfoctrinf^  It  was^ 
refierved_fgr^  the  ingenuity  of  an  American  court  to  dis- 
cover  in  the  doctrine  that  a  servant  cannot  recover  from 
the  master  for  the  negligence  of  a  fellow-servant  a  public 
policy  in  favpr  of  Increased  safety,  sinrp  servants  won  1H 
be  thereby  induced  to  watch  each  other  mutually  (Ch.  J. 

1  Class-bias,  even  unconscious,  is  likely  to  be  very  much  overestimated 
as  a  factor  in  the  modern  common  law  (see  Burdick,  "Is  Law  the  Expression 
of  Class  Selfishness?"  25  Harvard  Law  Review  349);  of  deliberate  favor  to 
economically  dominant  interests  there  is  practically  none. 


THE  COMMON  LAW  AND  PUBLIC  POLICY  47 

Shaw  in  Farwell  v.  Boston  &•  Worcester  R.  Co.,  4  Mete. 
49,  1842).  The  case  by  which  the  doctrine  was  estab- 
lished in  England  (Priestly  v.  Fowler,  3  M.  &  W.  i,  1837) 
concerned  a  butcher  boy,  and  the  court  considered  the 
problem  entirely  from  the  point  of  view  of  the  hardships 
that  might  result  to  the  head  of  a  small  business  or  of  a 
private  household.  That  point  of  view  is  not  without 
merit.  The  civil  law  does  not  make  the  master  liable 
for  the  servant's  fault  unless  the  master  was  at  fault  in 
selecting  or  supervising  him  (culpa  in  eligendo),  while  the 
common  law  makes  the  master  liable  irrespective  of  such 
fault  if  the  servant's  negligence  was  in  the  course  of  his 
employment  (respondeat  superior).  The  fellow-servant 
doctrine,  which  refuses  to  apply  this  rule  where  another 
servant  in  the  same  employ  is  the  victim  of  the  negligence, 
is  thus  the  illiberal  offshoot  of  a  very  liberal  doctrine. 
The  fellow-servant  stands  in  our  law  as  unfavorably  as, 
but  not  more  unfavorably  than,  any  other  person  under 
the  civil  law.  The  difference  is  that  in  the  civil  law  his 
rule  is  the  normal  and  general  rule,  while  in  the  common 
law  it  is  an  exception  from  a  rule  which  has  come  to  be 
accepted  as  the  rule  of  ordinary  justice.  No  wonder 
then  that  workingmen  felt  and  feel  aggrieved. 

Mr.  Asquith,  explaining  in  Parliament  the  law  of 
employer's  liability,  ascribed  the  exceptions  from  normal 
rules  which  prejudiced  the  workmen  to  the  consideration 
that  if  the  ordinary  rule  were  enforced  in  such  cases  it 
would  operate  to  check  the  development  of  industry  and 
the  investment  of  capital  (8  Hansard  1943,  1893).  But 


48  STANDARDS  OF  AMERICAN  LEGISLATION 

if  any  such  idea  operated  on  the  minds  of  the  judges,  no 
trace  of  it  is  to  be  found  in  reported  opinions,  and  the 
judges  were  probably  quite  unaware  of  it.  The  trouble 
was  here,  as  in  other  cases,  that  they  considered  the 
problem  as  if  it  concerned  abstract  relations  between  con- 
vertible human  personalities,  while  it  was  a  problem  con- 
cerning industry  and  a  class.  The  law  did  not  take 
cognizance  of  this  fact  until  the  multiplied  effects  of  the 
rule  reflected  themselves  in  class-reaction  and  class- 
consciousness. 

Most__of  the  common  law  has  developed  in  that 
atmosphere  of  indifferent  neutrality  which  has  enabled 
courts  to  be  impartial  but  also  keeps  them  out  of  touch 
with  vitaLjieeds.  When  interests  are  litigated  in  par- 
ticular cases,  they  not  only  appear  as  scattered  and  iso- 
lated interests,  but  their  social  incidence  is  obscured  by 
the  adventitious  personal  factor  which  colors  every 
controversy.  If  policy  means  the  conscious  favoring  of 
social  above  particular  interests,  the  common  law  must 
hjecharged  with  having  too  much  justice  and  tooJittle 
policy.  It  has  fallen  to  the  task  of  modern  legislation  to 
redress  the  balance. 

While  public  policy  is  thus  subordinate  and  elusive  as 
a  factor  entering  into  the  law  of  property  and  contract, 
itis~aT5o~buiiiLVvlidL  VSgue  Imd  unsatisfactory  where  it 
appears  as  a  distinct  doctrine,  as  it  does  when  we  speak 
of  acts  or  agreements  contrary  to  public  policy  or  of  torts 
or  crimes  in  violation  of  general  public  interests.  The 
courts  appear  to  have  kept  the  notion  flexible  on  purpose. 


THE  COMMON  LAW  AND  PUBLIC  POLICY  49 

AGREEMENTS   CONTRARY  TO   PUBLIC  POLICY 

It  is  a  commonplace  that  an  agreement  for  the  fioing 
of  ,a_J:hing  immoral  or  tWbidden_Jby  law  will  not  be^ 
enforced.  An  agreement  in  consideration  of  the  doing  of 
such  a  thing  stands,  generally  speaking,  on  the  same 
footing,  though  in  England  a  bond  given  in  return  for 
past  illicit  cohabitation  has  been  held  valid  as  a  voluntary 
bond  (Gray  v.  Mathias,  5  Ves.  286,  1800).  The  only 
serious  controversy  that  has  arisen  in  this  branch  of  the 
law  is  whether  betting  or  wagering  contracts  are  unlaw- 
ful, and  the  rule  in  England  has  come  to  be  that  in  order 
to  render  them  void  there  must  be  something  about  the 
particular  subject-matter  or  object  of  the  wager  that  is 
objectionable  or  prejudicial  to  public  or  private  interests 
(see  Cowper,  pp.  37  and  729;  also  2  Term  Rep.  610).  In 
some  of  the  American  states  this  lenient  doctrine  has 
been  repudiated,  and  betting  or  wagering  contracts,  irre- 
spective of  any  particular  features,  have  been  declared 
unenforceable  (3  N.H.  152,  1825;  2  Vt.  144,  1829;  i 
Strobh.  S.C.  82,  1846).  The  unsettled  state  of  the  com- 
mon law  should  be  contrasted  with  the  very  pronounced 
legislative  policy  against  gambling  of  any  kind. 

Much  greater  interest  attaches  to  those  cases  in 
which  agreements  are  held  to  be  contrary  to  public  policy, 
although  the  law  looks  with  unconcern  upon  their  being 
carried  out.  Agreements  in  restraint  of  marriage  and 
many  forms  of  agreements  in  restraint  of  trade  are  the 
most  conspicuous  instances  in  point.  A  person  may 
refuse  to  marry  if  he  chooses,  but  a  bond  conditioned 


50  STANDARDS  OF  AMERICAN  LEGISLATION 

upon  remaining  unmarried  will  not  be  enforced.  A  person 
may  decline  to  sell  below  a  certain  price,  but  a  price- 
maintenance  agreement  is  invalid;  he  may  limit  his  out- 
put, but  cannot  legally  bind  himself  toward  another  to 
do  so. 

It  is  tempting  to  say  that  what  the  law  discountenances 
in  these  cases  is  the  premature  binding  of  a  freedom  of 
decision  which  ought  to  remain  unfettered  until  the  time 
of  action  has  arrived.  This  would  represent  a  pro- 
nounced policy  hi  favor  of  personal  rights,  subordinating 
the  abstract  freedom  of  will  as  expressed  in  the  binding 
obligation  of  contract  to  the  concrete  freedom  of  action 
where  the  latter  seems  material  to  the  freedom  of  social 
movement  or  to  the  conservation  of  other  social  values. 
But  the  study  of  English  decisions  hardly  supports  this 
otherwise  attractive  theory  and  reveals  a  much  more 
utilitarian  view  of  public  interest.  Much  attention 
has  always  been  given  to  the  exceptions  to  the  rule 
against  agreements  in  restraint  of  trade.  A  reasonable 
restraint  is  allowed,  and  the  most  important  application 
of  the  exception  is  found  in  covenants  not  to  compete, 
which  are  incidental  to  the  sale  of  a  good-will  or  to  a 
contract  of  employment.  Such  a  covenant  must  not 
exceed  the  bounds  of  reasonableness.  What  is  the 
criterion  of  reasonableness  ?  If  we  examine  the  English 
decisions  down  to  a  very  recent  date,  we  find  that  the 
criteria  are  adequate  protection  to  the  covenantee  and 
th^  Tfaving^of  ample  facilities  for  thfi__se£vice_of<wthe 
public.  The  consideration  that  the  covenantor  shall  not 


THE  COMMON  LAW  AND  PUBLIC  POLICY  51 

be  hampered  unduly  in  pursuing  his  means  of  livelihood 
represents  a  larger  policy,  identifying  public  interest,  not 
merely  with  facilities  for  public  service,  but  with  the 
largest  opportunity  for  individual  usefulness.  This  aspect 
of  the  matter  seems  hardly  to  have  been  considered  in 
the  earlier  cases,  which  allow  lifelong  restraints  upon  an 
employee  against  setting  up  hi  business  or  accepting 
employment  with  rival  firms  anywhere  within  a  large 
metropolis  or  other  district  (Mattan  v.  May,  n  M.  &  W. 
653,  1843,  surgeon-dentist's  assistant,  entire  city  of 
London;  Mumford  v.  Gelking,  7  C.B.N.S.  305,  1859, 
midland  district  of  England,  commercial  traveler)  on  the 
ground  that  such  covenants  are  proper  securities  for  the 
protection  of  the  employer  and  encourage  rather  than 
cramp  the  employment  of  capital  in  trade  and  the  pro- 
motion of  industry.  Four  very  recent  cases  are,  however, 
very  much  more  favorable  to  the  employee,1  and  the 
observation  of  Lord  Haldane  in  one  of  these,  that  "the 
practice  of  putting  into  these  agreements  anything  that 
is  favorable  to  the  employer  is  one  which  the  courts  have 
to  check,"  seems  to  mark  a  turning-point  in  this  phase 
of  the  English  law.  Similar  restraints  upon  employees 
seem  to  be  unusual  in  America,  where  undoubtedly  a 

1  Mason  v.  Provident,  etc.,  Co.,  1913,  A.C.  724;  Nevanas,etc.,  Co.  v.  Walker, 
1914,  i  Ch.  413;  Eastes  v.  Russ,  1914,  i  Ch.  468;  Herbert  Morris,  Ltd.  v. 
Saxelby,  1915, 2  Ch.  57;  1916,  A.C.  688,  particularly  the  opinion  of  Lord  Shaw 
of  Dunfermline:  "Under  modern  conditions,  both  of  society  and  of  trade,  it 
would  appear  to  be  in  accord  with  the  public  interest  to  open  and  not  to  shut 
the  market  of  these  islands  to  the  skilled  labour  and  the  commercial  and 
industrial  abilities  of  its  inhabitants,  to  further  and  not  to  obstruct  for  these 
les  carrieres  couvertes." 


52  STANDARDS  OF  AMERICAN  LEGISLATION 

strong  public  sentiment  would  condemn  such  a  hampering 
of  the  freedom  of  individual  action. 

A  similar  question  is  presented  by  the  attitude  of  the 
laj^tnwflTfj  what  is  called  "contracting  out."  that  is  to 
say,  agreements  bvwhich  the  benefit  of  a  rule  of  law 
imposing  some  liability  is  waived  in  advance  of  the 
liability  arising,  by  the  person  intended  to  be  benefited  by 
the  rule.  The  question  has  practically  arisen  in  England 
in  connection  with  the  Employer's  Liability  Act  of  1880, 
in  America  in  connection  with  stipulations  of  railroad 
companies  for  exemption  from  liability  for  the  negligence 
of  their  employees. 

The  English  decision  has  been  in  favor  of  the  right  to 
contract  out  (Griffiths  v.  Earl  of  Dudley,  9  Q.B.D.  357, 
1882).  The  employer  had  in  that  case  been  a  liberal 
contributor  to  an  employees'  pension  fund,  and  no 
contracting-out  stipulation  appears  to  have  come  before 
English  courts  in  which  that  was  not  the  case.  This 
element  undoubtedly  entered  as  an  important  factor 
into  the  decision  that  the  contract  did  not  violate  public 
policy,  and  it  would  therefore  be  unwarranted  to  draw 
the  general  conclusion  that  an  advance  exoneration  from 
tort  liability  is  valid  under  the  English  law.  If  the 
silence  of  the  books  upon  the  subject  is  due  to  the  fact 
that  bald  stipulations  for  immunity  from  liability  for 
personal  injury  have  not  as  a  matter  of  fact  been  brought 
to  judicial  test,  this  rather  points  to  a  popular  belief  that 
such  agreements  are  illegitimate.  The  practice  of  railroad 
companies  exempting  themselves  from  liability  for  injury 


THE  COMMON  LAW  AND  PUBLIC  POLICY  53 

to  property  led  to  the  enactment  of  legislation  leaving  it 
to  the  trial  judge  to  determine  the  reasonableness  of  the 
condition  (Railway  and  Canal  Traffic  Act,  1854,  sec.  7) ; 
but  no  similar  legislation  exists  with  regard  to  passengers 
or  other  persons. 

In  America  we  find  it  strongly  held  that  the  rule  of 
employer's  liability  cannot  be  avoided  by  contract 
between  employer  and  employee  (Johnston  v.  Fargo,  184 
N.Y.  379);  but  the  decision  related  to  an  unqualified 
contract  of  exemption  supported  by  no  other  considera- 
tion than  the  employment  itself.  The  American  reports 
also  show  a  number  of  important  cases  passing  on  the 
validity  of  stipulations  by  railroad  companies  against 
their  liability  for  injuries  to  persons  carried  by  them.  In 
all  these  cases  there  was  some  special  consideration,  if 
only  a  reduced  rate,  and  in  New  York  the  agreement  was 
sustained,  while  the  Supreme  Court  of  the  United  States 
adopts  a  stricter  rule  (Bissell  v.  R.  Co.,  25  N.Y.  443; 
Railroad  Co.  v.  Lockwood,  17  Wall.  357;  but  see  B.  & 
0.  S.W.  Ry.  Co.  v.  Vrigt,  176  U.S.  498).  If  on  the  whole 
the  American  courts  seem  less  inclined  to  recognize  a 
right  to  contract  out  than  the  English  courts,  the  expla- 
nation may  perhaps  be  found  in  part  in  the  character  of 
the  cases  which  have  arisen  in  the  respective  jurisdictions, 
and  in  neither  of  the  two  countries  is  the  doctrine  entirely 
settled. 

Again,  however,  particular  notice  should  be  taken  of 
the  judicial  concept  of  public  policy.  New  York  sup- 
ported the  validity  of  the  exemption  in  the  case  of 


54  STANDARDS  OF  AMERICAN  LEGISLATION 

gratuitously  carried  passengers  by  the  argument  that 
their  number  was  so  small  that  the  inducement  to  adopt 
safeguards  could  not  be  materially  affected  by  non- 
liability to  them  (24  N.Y.  185).  The  English  court,  in 
permitting  exoneration  from  the  Employer's  Liability 
Act  of  1880,  said  that  it  was  at  least  doubtful  whether, 
where  a  contract  is  said  to  be  void  as  against  public 
policy,  some  public  policy  which  affects  all  society  is  not 
meant,  and  that  hi  the  present  case  the  interest  of  the 
employed  only  could  be  affected. 

The  idea  that  the  policy  of  the  law  is  opposed  to  a 
freedom  of  contract  which  results  in  the  bargaining 
away  of  bodily  safety  and  the  lowering  of  strict  standards 
of  care  does  not  appear  conspicuously  until  a  very  recent 
decision  of  the  New  York  Court  of  Appeals  (Johnston  v. 
Fargo,  184  N.Y.  379,  385,  1906).  We  find,  on  the  con- 
trary, strong  intimations  of  a  theory  that  the  defenses  of 
assumption  of  risk  and  of  common  employment  which 
hi  the  majority  of  cases  negative  any  liability  on  the  part 
of  the  employer  are  the  result  of  implied  contract,  that 
is  to  say,  of  the  employee  contracting  himself  out  of  the 
benefit  of  a  normal  rule  making  for  safety,  and  that  the 
strict  employers'  liability  legislation  merely  negatives 
the  implied  contract,  thus  leaving  room  for  the  reinstate- 
ment of  the  defenses  by  express  agreement  (9  Q.B.D.  on 
p.  363).  The  two  defenses  become  far  more  objection- 
able, if  based  upon  the  fiction  of  an  agreement,  than  if 
they  are  derived  from  the  nature  of  the  relation.  A 
classical  expression  of  the  older  view,  which  sounds  to  us 


THE  COMMON  LAW  AND  PUBLIC  POLICY  55 

like  a  travesty  on  common-sense,  may  be  found  in  the 
dissenting  opinion  of  Lord  Bramwell,  one  of  the  most 
distinguished  of  Victorian  judges,  in  the  case  of  Smith  v. 
Baker  (1891  A.C.  325),  and  his  words  should  be  quoted 
in  full: 

It  is  a  rule  of  good  sense  that  if  a  man  voluntarily  undertakes 
a  risk  for  a  reward  which  is  adequate  to  induce  him,  he  shall  not, 
if  he  suffers  from  the  risk,  have  a  compensation  for  which  he  did 
not  stipulate.  He  can  if  he  chooses  say:  "I  will  undertake  the 
risk  for  so  much,  and  if  hurt  you  must  give  me  so  much  more  or 
an  adequate  equivalent  for  the  hurt."  But  drop  the  maxim. 
Treat  it  as  a  question  of  bargain.  The  plaintiff  here  thought  the 
pay  worth  the  risk  and  did  not  bargain  for  a  compensation  if  hurt; 
in  effect  he  undertook  the  work  with  its  risks  for  his  wages  and  no 
more.  He  says  so.  Suppose  he  had  said,  "If  I  am  to  run  this  risk 
you  must  give  me  six  shillings  a  day,  and  not  five  shillings,"  and 
the  master  agreed,  would  he  in  reason  have  a  claim  if  he  got  hurt  ? 
Clearly  not.  What  difference  is  there  if  the  master  says,  "No,  I  will 
only  give  you  five  shillings?"  None.  I  am  ashamed  to  argue  it. 

But  Smith  v.  Baker  is  generally  regarded  as  marking  a 
turning-point  in  the  law.  The  doctrine  of  freedom  of 
contract  flourished  during  the  greater  portion  of  the  reign 
of  Queen  Victoria,  and  in  its  extreme  form  was  stated  by 
Sir  George  Jessel  in  1875: 

It  must  not  be  forgotten  that  you  are  not  to  extend  arbitrarily 
those  rules  which  say  that  a  given  contract  is  void  as  being  against 
public  policy,  because  if  there  is  one  thing  which  more  than  any 
other  public  policy  requires,  it  is  that  man  of  full  age  and  competent 
understanding  shall  have  the  utmost  liberty  of  contracting,  and 
that  their  contracts  when  entered  into  freely  and  voluntarily 
shall  be  held  sacred  and  shall  be  enforced  by  courts  of  justice. 


$6  STANDARDS  OF  AMERICAN  LEGISLATION 

Therefore,  you  have  this  paramount  polity  to  consider — that  you 
are  not  lightly  to  interfere  with  this  freedom  of  contract.  Now, 
there  is  no  doubt  public  policy  may  say  that  a  contract  to  commit 
a  crime,  or  a  contract  to  give  a  reward  to  another  to  commit  a 
crime,  is  necessarily  void.  The  decisions  have  gone  further,  and 
contracts  to  commit  an  immoral  offense,  or  to  induce  another  to 
do  something  against  the  general  rules  of  morality,  though  far 
more  indefinite  than  the  previous  class,  have  always  been  held  to 
be  void.  I  should  be  sorry  to  extend  the  doctrine  much  further. 
I  do  not  say  there  are  no  other  cases  to  which  it  does  apply;  but 
I  should  be  sorry  to  extend  it  much  further.1 

In  the  same  year,  1875,  a  new  phase  of  social  legis- 
lation, the  first  Agricultural  Holdings  Act  (38  &  39  Viet., 
ch.  92),  made  its  provisions  expressly  subject  to  be  set 
aside  by  agreement,  "freedom  of  contract"  being  the 
ruling  consideration.  But  the  Ground  Game  Act  of  1880 
for  the  first  time  introduced  a  distinct  clause  invalidating 
contrary  agreements,  and  in  1883  the  same  rule  was 
applied  to  the  amended  Agricultural  Holdings  Act  of 
that  year,  reversing  the  policy  of  1875.  In  the  work- 
men's compensation  legislation  of  1897  careful  provision 
is  made  for  substitute  schemes,  and  they  are  not  left  to 
a  general  right  of  "contracting  out."  The  American 
Federal  Employers'  Liability  Act  of  1908  contains  a 
strong  clause  annulling  contrary  agreements,  and  it 
may  be  assumed  that  even  without  express  provision 
Such  agreements  would  at  present  be  held  to  be  invalid. 
If  agreements  to  avoid  the  operation  of  mechanics'  lien 
legislation  are  held  valid  or  are  expressly  sanctioned  by 

1  L.R.  19  Eq.  462,  465. 


THE  COMMON  LAW  AND  PUBLIC  POLICY  57 

statute,  this  is  an  exception  due  to  the  doubts  entertained 
concerning  the  principle  of  that  legislation  (see  251  111. 
135,  and  Laws  of  Illinois,  1913,  p.  400).  The  more  recent 
legislation  reflects  altered  views  regarding  the  freedom  of 
contract,  but  Sir  George  Jessel  was  probably  right  when 
he  declared  that  freedom  to  have  been  the  paramount 
policy  of  the  common  law. 

PUBLIC  POLICY  IN  THE  LAW  OF  TORTS  AND  MISDEMEANORS 

The  legal  status  of  agreements  in  restraint  of  marriage 
or  of  "contracting  out"  under  the  more  recent  judicial 
doctrine  shows  that  an  act  contrary  to  public  policy  is 
not  necessarily  illegal  in  the  sense  in  which  the  term  is 
used  in  the  law  of  torts  and  crimes,  so  as  to  give  occasion 
to  positive  measures  of  redress,  either  by  way  of  penalty 
or  by  way  of  damages.  Where  the  law  is  systematically 
classified,  crimes  J^el^ng  fo  pnHir  law  and  torts  to_jio- 
vate  lawj,  but  that  the  illegality  of  torts  has  also  a  pub- 
lic aspect  is  shown  by  the  fact  that  practically  every 
tort  when  committed  under  aggravating  circumstances 
becomes  a  crime. 

The  more  serious  crimes  touch  the  very  foundations 
of  social  order;  the  Anglo-Saxon  or  early  Anglicized 
terms  of  the  more  important  felonies — murder,  mayhem, 
rape,  robbery,  burglary,  arson,  larceny — indicate  old- 
established  and  firmly  settled  notions,  while  in  the  law  of 
torts  only  the  term  trespass  suggests  ancient  and  cus- 
tomary origins.  The  very  simplicity  of  the  underlying 
standards  seems  to  remove  these  branches  of  the  law 


58  STANDARDS  OF  AMERICAN  LEGISLATION 

from  the  domain  of  public  policy,  which  as  usually  under- 
stood refers  to  interests  either  controversial  or  at  least 
more  or  less  openly  opposed  by  considerable  elements  of 
the  community.  We  should  hardly  refer  to  murder  as  a 
crime  against  public  policy,  and  although  problems  of 
prosecution  and  punishment  raise  profound  issues  of  pol- 
icy, these  issues  are  in  a  manner  foreign  to  the  commu- 
nity at  large,  which  looks  upon  criminal  procedure  as 
a  thing  apart  and  outside  of  the  sphere  of  common 
interests. 

It  is  otherwise  with  regard  to  less  evil  and  lawless 
practices  endangering  social  interests,  forms  of  miscon- 
duct, or  machinations  devoid  of  violence  and  not  con- 
stituting either  trespass,  breach  of  peace,  or  felony. 
Negligence,  nuisance,  and  conspiracy  are  the  principal 
categories  of  wrong  which,  whether  as  torts  or  as  mis- 
demeanors, involve  considerations  of  public  policy- 
negligence,  as  endangering  safety;  nuisance,  as  a  menace 
to  health  and_ comfort:  and  conspiracyr  on  account  of 
its  connection  with  forms  of  economic  oppression  and 
exploitajjon.  The  limitations  of  the  common  law  in 
connection  with  these  three  branches  of  the  law  of  torts 
and  crimes  have  had  important  bearings  upon  modern 
legislation. 

The  manifold  dangers  to  life  and  limb  resulting  from 
the  employment  of  great  mechanical  forces  in  industry 
and  transportation  have  raised  causes  of  action  for  neg- 
ligence to  the  first  place  in  civil  litigation.  In  Prussia 
the  introduction  of  railroads  was  followed  almost  immedi- 


THE  COMMON  LAW  AND  PUBLIC  POLICY  59 

ately  (in  1838)  by  the  establishment  of  a  rule  of  liability 
irrespective  of  negligence,  and  subject  only  to  the  defense 
of  force  of  nature  or  the  injured  person's  own  fault,  and 
this  law  was  subsequently  extended  to  the  German 
Empire  (Act  of  June  7,  1871).  This  step  was  not  taken 
either  in  England  or  in  America;  but  the  courts  uniformly 
applied  to  railroad  companies  as  carriers  of  passengers  an 
extremely  high  standard  oLcare,  and  it  is  probably  true 
that  the  rigorous  enforcement  of  strict  rules  of  liability 
has  contributed  more  than  any  other  factor  to  the  present 
standard  of  safety  in  railroad  transportation.  A  marked 
contrast  is  presented  by  the  law  of  negligence  in  its 
internal  industrial  aspect.  The  principles  of  liability 
which  operate  between  railroad  companies  and  the  public 
at  large  are  almost  nullified  in  the  relation  between  rail- 
road companies  and  their  employees  as  a  consequence  of 
the  defenses  which  qualify  the  liability  of  the  employer. 
These  defenses  (assumption  of  risk  and  common 
employment)  operate  in  all  industries,  and  the  utterly 
unsatisfactory  character  of  the  law  of  negligence  in  the 
field  of  industry  has  produced  the  demand  first  for  safety 
legislation,  then  for  a  modification  of  the  common  law 
of  employer's  liability,  and  finally  for  workmen's  com- 
pensation. The  fact  that  negligence  does  not  constitute 
a  tort  in  the  absence  of  actual  damage  suffered  has  also 
barred  the  way  to  effective  preventive  relief;  there  seems 
to  be  no  case  in  which  an  injunction  has  been  sought  or 
granted  against  unsafe  or  unsanitary  working  conditions. 
As  regards  dangers  to  health,  the  law  of  negligence, 


60  STANDARDS  OF  AMERICAN  LEGISLATION 

indeed,  affords  no  adequate  relief  even  by  way  of  redress, 
for.Jn  nearly  all  cases  of  occupational  disease  it  is  impos- 
sible to  establish  the  chain  of 


particular  employment  and  lossof  health  resulting  in 
injury,  or  if  the  causation  is  established,  it  is  counter- 
acted by  assumption  of  risk  or  contributory  negligence.1 
Where  disease  is  contracted  through  insanitary  dwellings, 
the  common  law  of  landlord  and  tenant  relieves  the 
former  of  any  duty,  and  negligence  can  therefore  not  be 
predicated.  The  difference  made  by  the  common  law 
in  the  protection  accorded  to  the  public  at  large  (passen- 
gers) and  to  dependent  groups  (employees,  tenants),  to 
the  disadvantage  of  the  latter,  is  obvious. 

Nuisance  as  a  tort  covers  in  part  the  same  ground  as 
negligence;  but  the  law  of  nuisance  has  in  so  far  a 
narrower  application,  as  it  is  regularly  confined  to 
injuries  concerning  the  enjoyment  of  property.  Under 
circumstances  an  unsafeorjnsanitary  factojry^jrnjpf^  or 
tenement  might  give  a  cause  of  action  for  nuisance^to 
the  owner_of^an  adjoining  property,  but  not  to  employees 
or  mere  occupiers.  Thus  nuisance  counts  for  less  than 
negligence  as  a  civil  weapon  for  the  protection  of  social 
interests;  it  concerns  itself  with  persons  only  as  land- 
owners and  through  the  medium  of  property  rights 
(Kavanaghv.  Barber,  131  N.Y.  211). 

1  The  difficulties  are  well  set  forth  by  Professor  F.  H.  Bohlen  in  63  Univer- 
sity of  Pennsylvania  Law  Review  183.  There  is  also  the  additional  difficulty 
of  apportioning  liability  between  different  establishments  in  which  the  em- 
ployees may  have  worked  while  contracting  the  disease.  This  is  taken  care  of 
by  sec.  8c.  (3)  of  the  English  Workmen's  Compensation  Act  of  1906. 


THE  COMMON  LAW  AND  PUBLIC  POLICY  6 1 

The  law  of  conspiracy  in  its  civil  aspect  might  have 
been  expected  to  play  some  part  in  the  struggle  against 
monopolistic  combinations.  It  is  therefore  interesting  to 
learn  from  the  opinions  rendered  in  a  leading  English 
case  (Mogul  S.S.  Co.  v.  McGregor,  1892  A.C.  25)  that  no 
damages  had  ever  previously  been  recovered  in  English 
courts  by  a  trader  against  a  trade  combination  cutting 
off  his  trade  on  account  of  his  refusal  to  join  the  combina- 
tion. The  decision  in  that  case  denied  the  actionability 
of  injurious  practices  designed  to  insure  the  success  of 
the  combination.  The  American  reports  likewise  fail  to 
show  successful  actions  for  damages  against  capitalistic 
combinations,  until  such  a  cause  of  action  was  created  by 
the  anti-trust  legislation  of  the  last  decade  of  the  nine- 
teenth century. 

It  is  true  that  common-law  actions  have  been  sustained 
against  labor  combinations,  and  that  injunctions  against 
picketing  and  boycotts  have  been  granted  repeatedly  by 
courts  of  equity;  and  it  is  also  characteristic  that  the 
most  conspicuously  successful  of  civil  actions  for  damages 
under  the  federal  anti-trust  act  has  been  brought  against 
a  labor  union  (Lawlor  v.  Loewe,  235  U.S.  522).  Even  if 
the  object  of  such  actions  were  more  commonly  than  it 
actually  is  the  protection  of  the  rights  of  labor  rather 
than  the  protection  of  the  property  of  the  employer,  the 
civil  law  of  conspiracy  cannot  be  said  to  have  coped 
successfully  with  the  great  problem  of  combination.  The 
line  between  lawful  persuasion  and  coercion  remains 
largely  undefined,  and  the  extent  to  which  collective  effort 


62  STANDARDS  OF  AMERICAN  LEGISLATION 

and  power  may  be  carried  legitimately  is  as  yet  uncer- 
tain; no  doctrine  of  defenses  comparable  to  that  of 
privilege  in  the  law  of  libel  has  been  developed.  The 
very  fact  that  the  courts  have  begun  to  discuss  these 
questions  only  within  the  last  twenty  years  shows  how 
little  the  freedom  of  economic  action  owes  to  the  civil 
law  of  conspiracy. 

CRIMINAL  ASPECT  OF  OFFENSES  AGAINST  PUBLIC  POLICY 

The  relative  importance  of  negligence,  conspiracy, 
and  nuisance  changes  as  we  approach  them  from  the 
point  of  view  of  the  criminal  law. 

If  negligence  results  in  the  death  of 


tutes  manslaughter,  which  is  a  felony.  Looking  merely 
at  constituent  elements,  it  takes  in  some  respects  less  to 
make  a  case  of  criminal  guilt  than  of  civil  liability;  for  it 
is  not  necessary  to  show  any  pecuniary  loss  or  damage  to  a 
representative  of  the  person  killed,  nor  would  assumption 
of  risk  or  contributory  negligence  on  his  part  be  recognized 
as  defenses  to  a  criminal  prosecution  (21  Cyc.  766). 
Nevertheless,  criminal  responsibility  has  been  a  negligible 
factor  in  comparison  with  civil  liability  as  an  incentive 
to  raising  standards  of  safety;  for  the  requirements  for 
establishing  criminal  guilt,  as  regards  proof  of  causation, 
are  stricter  than  in  civil  cases.  The  instructions  given 
in  the  trial  of  the  Triangle  Waist  Fire  case  in  New  York1 
illustrate  the  difficulties  that  have  to  be  overcome  in  the 
way  of  evidence  and  which  are  so  likely  to  lead  to  acquit- 

•See  Chicago  Legal  News,  January  20,  1912. 


THE  COMMON  LAW  AND  PUBLIC  POLICY  63 

tals  or  mistrials.  The  conviction  obtained  in  the  case 
of  the  fire  which  destroyed  the  steamboat  "General 
Slocum"  was  a  conspicuous  exception  to  a  general  rule 
(U.S.  v.  Van  Schaick,  134  Fed.  592). 

Apart  from  homicide  through  carelessness,  the  com- 
mon  law  knows  no  offense  of  criminal  negligence,  nor 
any  offense  of  negligent  injury  to  person  or  property. 
Unless  the  conditions  due  to  the  neglect  or  carelessness 
amount  to  a  nuisance,  there  is  no  power  to  prosecute,  and 
the  fear  of  criminal  responsibility  will  fail  entirely  as  an 
inducement  to  the  taking  of  necessary  precautions  to 
avoid  accident.  In  the  relation  between  employer  and 
employee  this  defect  of  the  common  law  is  of  particular 
significance. 

Criminal  conspiracy. — The  law  of  conspiracy  is  as 
unsatisfactory  in  its  criminal  as  in  its  civil  aspect.  The 
Mogul  Steamship  Company  case  was  an  action  for 
damages,  but  the  arguments  by  which  the  court  disproves 
the  existence  of  an  actionable  tort  are  equally  applicable 
to  dispose  of  the  contention  that  a  combination  in 
restraint  of  trade  constitutes  a  crime;  and  they  are  so 
understood  and  accepted  by  an  authoritative  text- 
writer.1  A  hundred  years  earlier  the  understanding  of 
the  law  would  probably  have  been  different,  and  the 
charge  of  criminal  conspiracy  might  have  been  main- 
tained. 

American  states,  in  codifying  the  common  law  of 
crimes,  have  not  hesitated  to  include  in  the  enumeration 

1  Russell  on  Crimes,  I,  492. 


64  STANDARDS  OF  AMERICAN  LEGISLATION 

of  the  objects  of  a  criminal  conspiracy  "acts  injurious  to 
public  health,  to  public  morals,  or  to  trade  or  commerce" 
(New  York  Penal  Law,  sec.  580),  and  in  1893  a  capitalistic 
combination  was  successfully  prosecuted  under  this  very 
general  provision  (People  v.  Sheldon,  139  N.Y.  251). 
Both  in  England  and  in  America  the  law  of  criminal 
conspiracy  in  its  application  to  trade  had  as  a  matter  of 
history  become  associated  in  the  public  mind  with 
attempts  to  repress  labor  combinations  and  strikes,  and 
in  the  early  part  of  the  nineteenth  century  prosecutions  of 
labor  organizations  for  conspiracy  had  resulted  in  con- 
victions in  New  York  and  Pennsylvania.1  A  decision  of 
the  Supreme  Court  of  Massachusetts  rendered  in  1842 
(Com.  v.  Hunt,  4  Mete,  in)  marks  a  turning-point  in 
the  judicial  attitude  toward  combinations  of  labor;  but 
the  law  of  criminal  conspiracy  has  become  unfortunately 
tainted  with  the  suspicion  of  being  an  instrument  of 
class-oppression. 

As  regards  combinations  of  capital,  they  do  not  in 
America  appear  to  have  become  the  subject  of  criminal 
prosecution  for  common-law  conspiracy;  and  authorita- 
tive treatises  exhibit  the  greatest  uncertainty  as  to  the 
existence  and  scope  of  common-law  crimes  in  restraint 
of  trade;2  hence  it  is  safe  to  say  that  in  1890,  when  the 
Sherman  anti-trust  law  was  enacted,  no  person  in  or  out 
of  Congress  could  have  stated  with  any  confidence  what 

1  Carson,  Criminal  Conspiracy;  Documentary  History  of  American  Industrial 
Society,  Vols.  Ill,  IV;  Freund,  Police  Power,  sec.  331. 

J  Bishop,  New  Criminal  Law,  sees.  518-28. 


THE  COMMON  LAW  AND  PUBLIC  POLICY  65 

constituted  a  criminal  conspiracy  in  restraint  of  trade  at 
common  law,  and  in  penalizing  unqualifiedly  all  combi- 
nations in  restraint  of  commerce  Congress  took  a  leap  in 
the  dark  and  set  a  task  to  the  courts  with  which  they  are 
still  wrestling. 

While,  in  so  far  as  we  can  speak  of  a  common-law 
policy,  there  appears  to  be  no  discrimination  in  theory 
between  combinations  of  labor  and  of  capital,  unques- 
tionably the  common  law,  as  distinguished  from  the 
recent  anti-trust  legislation,  has  been  used  chiefly,  if  not 
exclusively,  against  the  former.  At  the  same  time  it  has 
proved  entirely  inadequate  to  cope  with  the  great 
economic  and  social  problems  involved  in  labor  troubles, 
even  more  so  than  the  legislation  framed  upon  the  same 
lines  has  failed  to  cope  with  the  problem  of  capitalistic 
combination  and  consolidation.  The  vagueness  of  the 
offense,  so  far  from  being  an  advantage  in  dealing  with 
controverted  issues,  has  placed  criminal  prosecution  under 
the  suspicion  of  meddling  or  arbitrariness,  and  has  con- 
demned it  to  ultimate  failure. 

Common  nuisance. — The  scope  of  nuisance  is  as  vague 
and  elastic  as  that  of  conspiracy.  Blackstone,  in  dis- 
cussing it,  speaks  of  an  offense  against  public  order  and 
the  economical  regimen  of  the  state,  and  of  neglecting  fo 
do  a  thing  which  the  common  good  requires.  A  statute 
of  Oklahoma  paraphrases  the  common  law  not  inaptly 
by  defining  the  offense  as  unlawfully  doing  any  act  or 
omitting  to  perform  any  duty  required  by  the  public 
good  which  annoys  or  injures  the  comfort  or  safety  of 


66  STANDARDS  OF  AMERICAN  LEGISLATION 

the  people,  or  offends  public  decency,  or  renders  life  un- 
comfortable. 

Both  conspiracy  and  nuisance  are  offenses  of  degree, 
with  this  difference,  that  the  former  relates  to  acts  which 
so  long  as  they  are  legitimate  are  inoffensive,  and  even 
useful,  while  the  acts  and  things  which  if  carried  to 
excess  become  nuisances  are  even  this  side  of  that  line 
offensive  and  ordinarily  (except  in  the  case  of  trade 
nuisances)  matter  of  mere  indulgence.  The  law  of 
nuisance  is  therefore  not  likely  to  become  an  instrument 
of  oppression  or  mischief.  It  might,  on  the  contrary,  be 
urged  that  wisely  used  it  should  constitute  an  effective 
check  against  the  tendencies  toward  new  forms  of 
danger  and  evil  that  unregulated  life  in  the  community 
constantly  develops.  Theoretically,  it  might  be  said, 
the  law  of  nuisance  is  the  common  law  of  the  police  power, 
striking  at  all  grpsfi  violations  r>f  healthT  safety,  order, 
and  morals.  Indeed,  the  English  and  American  reports 
show  sporadic  cases  in  which  what  may  be  called  police 
offenses  have  been  proceeded  against  successfully  as 
common  nuisances:  the  exposing  of  infected  persons  on 
public  streets  (King  v.  Burnett,  4  M.  &  S.  272);  the 
exhibition  of  indecent  pictures  for  money  (Com.  v. 
Sharpless,  2  S.  &  R.  91);  the  maintenance  of  notorious 
adulterous  relations  (Adams  v.  Com.,  151  S.W.  1006); 
acrobatic  performances  on  the  street  (Hall's  case, 
Ventr.  169);  a  house  for  slaughtering  horses  (R.  v.  Cross, 
2  C.  &  P.  483);  the  carrying  on  of  other  physically 
offensive  trades  or  industries  (Bishop,  Crim.  Law,  sec. 


THE  COMMON  LAW  AND  PUBLIC  POLICY  67 

1143);  or  the  exposure  of  unwholesome  provisions  for 
sale  in  a  public  market  (Bishop,  sec.  491).  In  1629  the 
judges  expressed  the  opinion  that  the  use  of  carriages  of 
excessive  weight  on  the  public  roads  constituted  a  public 
nuisance  (Rymer's  Foedera,  19,  p.  130).  It  was  sought 
at  one  time  to  proceed  against  unincorporated  companies 
as  public  nuisances,  but  without  success  (Lindley  on 
Companies,  p.  180).  Perhaps  the  most  remarkable  at- 
tempt to  extend  the  law  of  common  nuisance  was  made 
in  Indiana  in  1907,  when  a  criminal  prosecution  was 
instituted  charging  the  keeper  of  a  licensed  place  for  the 
sale  of  intoxicating  liquors  with  maintaining  a  public 
nuisance,  on  the  ground,  not  only  that  the  sale  of  such 
liquors  was  indictable  at  common  law,  but  that  to  au- 
tKorize  such  an  injurious  business  was  unconstitutional. 
Notwithstanding  the  plain  unsoundness  of  both  proposi- 
tions, the  court  thought  it  necessary  to  devote  extended 
arguments  to  their  refutation  (Sopher  v.  State,  169  Ind.  177- 
204)  .*  The  cases  are  cited  merely  to  illustrate  the  imagined 
potentialities  of  the  idea  of  a  nuisance  at  common  law. 
It  is  obvious,  however,  that  the  law  of  nuisance  is 
inadequate  as  a  substitute  for  modern  police  regulation: 
it  takes  cognizance  of  practices  only  when  danger  passes 
into  actual  mischief.  A  factory  without  safeguards 
against  fire  or  accident;  a  tenement  house  without 
sanitary  conveniences;  an  unfenced  railroad  track  or 
an  unguarded  grade  crossing;  offering  for  sale  fruit 

1  The  claim  that  a  saloon,  though  licensed  and  conducted  in  an  orderly 
manner,  may  constitute  a  private  nuisance  had  been  sustained  by  a  divided 
court  somewhat  earlier,  Haggart  v.  Stehlin,  137  Ind.  43. 


68  STANDARDS  OF  AMERICAN  LEGISLATION 

deceptively  packed;  a  bucket  shop;  a  white  phosphorus 
match  factory;  betting  on  elections — all  these  fall  as 
short  of  a  common-law  nuisance  as  the  place  for  the  sale 
of  intoxicating  liquors;  nor  do  they  offend  against  any 
other  common-law  principle.  On  the  other  hand,  how- 
ever, the  common  law  is  not  sufficiently  considerate  of 
the  requirements  of  industry,  for  the  law  of  trade  nui- 
sances takes  no  account  of  the  value  or  benefit  of  offensive 
manufacturing  processes.  That  a  nuisance  at  common 
law  cannot  be  predicated  upon  dangers  due  to  purely 
natural  conditions,  without  human  action  or  default, 
would  perhaps  not  materially  impair  its  availability  from 
a  social  point  of  view;  it  is  more  serious  that  a  nuisance 
must  be  alleged  to  be  to  the  injury  of  all  the  persons 
residing  in  a  given  neighborhood  (6  Gushing  80) ;  for  that 
requirement  negatives  the  offense  where  merely  definite 
groups  of  persons  are  affected  by  the  danger  or  mischief, 
as,  e.g.,  the  workers  in  a  factory  or  the  occupants  of  a 
tenement  house. 

Thus  for  many  of  the  modern  conditions  requiring 
control  or  relief  not  even  the  very  elastic  and  compre- 
hensive law  of  nuisance  affords  an  adequate  or  appropriate 
remedy,  and  we  are  forced  to  the  conclusion  that  the 
common  law  of  torts  and  crimes  does  not  furnish  the 
protection  called  for  by  present  needs. 

SHORTCOMINGS   OF  THE  COMMON  LAW  AS  A  SYSTEM  OF 
PUBLIC  POLICY 

If  the  foregoing  survey  has  on  the  whole  been  rather 
a  summary  of  defects,  and  should  appear  to  place  too  low 


THE  COMMON  LAW  AND  PUBLIC  POLICY  69 

an  estimate  upon  the  serviceability  of  the  common  law,  it 
should  be  remembered  that  the  point  of  view  has  been 
that  of  modern  social  needs  and  interests,  and  that  in 
consequence  that  aspect  of  the  common  law  has  been 
ignored  to  which  the  labors  of  courts  and  lawyers  have 
been  mainly  devoted,  namely,  its  function  in  adjusting 
conflicts  of  interests  in  which  the  contending  parties 
appear  simply  as  representatives  of  purely  private 
interests  and  generally  as  holders  of  property  dealing 
with  each  other  on  equal  terms. 

Not  only  would  other  systems  of  private  law,  developed 
mainly  on  the  basis  of  custom  and  of  adjudication, 
notably  the  Roman  and  the  Germanic  systems,  yield  but 
little  different  results  if  subjected  to  a  like  test,  but  even 
a  modern  codification  like  that  of  Germany,  undertaken 
at  a  tune  when  the  social  functions  of  legislation  were 
fully  realized,  did  not  attempt  to  make  the  civil  code  the 
vehicle  for  carrying  into  effect  every  desirable  social 
reform,1  but  constructed  it  with  a  primary  view  to 
abstract  and  equal  justice  between  private  and  pre- 
sumably equivalent  interests.  While  this  individualistic 
attitude  has  been  criticized,  it  represents  a  perfectly 
intelligible  method  and  principle,  and  the  expansion  of 
the  civil  and  the  common  law  over  practically  the  entire 
civilized  world  demonstrates  the  success  of  those  systems 
in  meeting  the  needs  of  the  prevailing  economic  con- 
stitution. 

1  There  are  conspicuous  exceptions;  see,  e.g.,  sees.  138,  296,  530,  544, 
617-19,624,671,  1245,  1654. 


70  STANDARDS  OF  AMERICAN  LEGISLATION 

Judged  from  the  standpoint  of  modern  demands,  the 
shortcomings  of  the  common  law,  as  it  stood  in  the  early 
part  of  the  nineteenth  century,  may  be  recapitulated  as 
follows : 

First,  its  standards  had  failed  to  keep  pace  with 
advancing  or  changing  ideals;  it  was  most  emphatic  in 
maintaining  order  and  authority,  least  emphatic  in 
relieving  social  weakness  and  inferiority;  it  developed 
no  principles  of  reasonableness  regarding  economic 
standards  or  equivalents  (oppressive  practices  of  employ- 
ment, landlords'  obligations,  reasonableness  of  price); 
its  ideal  of  public  policy  was  too  exclusively  the  advantage 
of  the  many  and  not  sufficiently  the  regard  for  the  claims 
of  individual  personality;  equity  was  absorbed  with 
property  interests  to  the  neglect  of  non-material  human 
rights. 

Secondly,  the  system  of  rights  and  obligations  was  too 
abstract  and  undifferentiated;  as  illustrated  by  the  well- 
known  story  of  the  deserted  husband  who  was  driven  to 
bigamy  because  he  could  not  afford  the  expense  of  a 
divorce  by  special  act  of  Parliament,  the  law  made  no 
difference  between  the  rich  and  the  poor  and  virtually 
became  a  law  for  the  rich;  the  fundamental  social  and 
economic  changes  brought  about  by  the  industrial  revo- 
lution remained  unreflected  in  common-law  principles. 

Third1yJJmjgia±tej:  concerning  social  security  (repre- 
sented chiefly  by  the  law  of  nuisance  and  fraud)  the 
common  law  hewed  too  close  to  the  line  of  actual  mischief 
to  afford  effectual  protection;  the  law  of  nuisance  proved 


THE  COMMON  LAW  AND  PUBLIC  POLICY  71 

inadequate  for  the  purpose  of  sanitation  or  safety  in 
industry  or  transportation;  the  law  of  fraud  was  too  lax 
to  insure  commercial  fair  dealing,  and  with  regard  to 
liquor  and  gambling,  common-law  illegality  begins  only 
with  disorderly  practices. 

Fourthly,  hi  the  common-law  offenses  against  public 
policy,  especially  nuisance  and  conspiracy,  the  concept 
of  public  injury  was  too  vague  for  practical  guidance 
and,  in  consequence,  fatally  defective  for  impartial  and 
vigorous  criminal  enforcement. 

Finally,  the  spirit  of  the  common  law  was  too  neutral 
for  an  effective  offensive  against  practices  injurious  to 
the  weaker  elements  of  society.  There  was  no  adequate 
organization  for  initiating  criminal  prosecution,  and  civil 
remedies  were  expensive  and  dilatory  and  unduly  favored 
pecuniary  resource  and  professional  skill.  While  this 
aspect  of  the  common  law  has  not  been  discussed  in  the 
foregoing  survey,  it  would  have  to  enter  largely  into  any 
discussion  of  modern  administrative  and  procedural 
reform,  and  it  accounts  for  important  phases  of  the 
recently  enacted  workmen's  compensation  legislation. 


\  CHAPTER  III 

THE  TASKS  AND  HAZARDS  OF  LEGISLATION 

If  the  tasks  of  legislation  are  set  by  the  traditional 
shortcomings  of  the  common  law  or  by  its  failure  to  adjust 
itself  to  changing  conditions,  we  should  expect  to  find  in 
modern  regulative  statutes  a  general  endeavor  to  define 
vague  restraints  or  prohibitions,  to  strike  at  antisocial 
conditions  at  a  point  more  remote  from  actual  loss  and 
injury,  and  to  give  effectjx)  altered  concepts  of  right  and 
wrong  and  of  the  public  s;ood.  Such,  in  fact,  is  the  scope 
and  content  of  modern  welfare  legislation. 

Not  only,  however,  is  it  inevitable  that  the  legislature 
should  not  always  clearly  comprehend  its  task  and 
therefore  perpetuate,  instead  of  correcting,  common-law 
defects,  but  it  must  also  happen  that,  in  narrowing  the 
bounds  of  toleration,  legislation  will  now  and  then 
antagonize  important  and  powerful  interests,  and  will  be 
challenged  for  having  taken  its  new  stand  upon  insuffi- 
cient justification. 

The  problems  thus  created  should  be  considered 
somewhat  in  detail. 

A.      LEGISLATION  AND  THE  VAGUENESS  OF  COMMON-LAW 

STANDARDS 

i.  Restraint  of  trade  and  monopoly. — The  failure  to 
correct  common-law  inadequacies  has  been  most  con- 
spicuous in  dealing  with  the  problem  of  combinations  in 

72 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  £73! 

restraint  of  trade.  The  common  law  of  conspiracy  was 
notoriously  uncertain  as  to  the  nature  and  extent  of 
illegal  practices,  whether  as  a  matter  of  tort  or  of  crime, 
whether  applied  to  labor  or  to  capital.  When  toward 
the  end  of  the  eighties  of  the  last  century  a  strong  appre- 
hension seized  the  nation  with  regard  to  the  dangers  and 
evils  of  monopolistic  combination,  a  demand  for  new 
legislation  arose,  and  the  absence  of  a  federal  common  law 
of  crimes  made  legislation  for  interstate  commerce 
necessary  if  repressive  action  was  to  be  taken  by  the 
national  government.  In  the  great  mass  of  anti-trust 
legislation  practically  nothing  was  done,  however,  to 
specify  forbidden  practices  with  adequate  certainty. 
The  federal  act  of  1890  is  typical  in  that  respect.  It 
declared  unlawful  and  actionable,  and  penalized,  any 
combination  in  restraint  of  commerce  between  the 
•states,  and  also  any  monopoly  or  attempt  at  monopoly. 
Any  doubt  under  the  common  law  as  to  whether  such  a 
combination  constituted  a  tort  or  crime  was  thereby 
removed,  but  not  the  doubt  as  to  the  precise  practices 
which  the  act  intended  to  cover. 

In  the  first  important  cases  in  which  the  Supreme 
Court  interpreted  the  act  (Trans-Missouri  case,  166  U.S. 
290,  1897;  Joint  Traffic  case,  171  U.S.  505,  1898)  it  was 
held  that  every  agreement  which  the  common  law 
rendered  merely  void,  i.e.,  any  agreement  restraining 
competition  between  two  separate  concerns,  except 
certain  covenants  incidental  to  the  sale  of  a  good-will 
or  to  an  employment,  was  now  liable  to  prosecution, 


74  STANDARDS  OF  AMERICAN  LEGISLATION 

irrespective  of  its  economic  purpose  and  effect.  If  the 
law  thus  interpreted  worked  out  unreasonably — and  its 
unreasonableness  as  regards  railroad-traffic  understand- 
ings was  convincingly  demonstrated  by  the  dissenting 
opinion  of  Justice  White  (166  U.S.  363,  364,  370,  371) — 
the  act  in  its  sweeping  prohibition  left  at  least  little 
room  for  uncertainty  so  far  as  agreements  were  concerned 
as  distinguished  from  monopolistic  consolidations;  for 
the  illegality  of  the  latter  was  entirely  a  matter  of  degree, 
undefined  and  undefmable.  In  the  Standard  Oil  and 
Tobacco  cases,  however  (221  U.S.  i,  106,  1911),  the 
Supreme  Court,  speaking  through  the  Chief  Justice  who, 
as  Associate  Justice,  had  dissented  from  the  first  inter- 
pretation of  the  act,  made  certain  observations  which 
have  been  generally  understood  as  meaning  that  the  test 
of  prejudice  to  the  public  would  be  applied  to  combina- 
tions if  proceeded  against  by  the  government.  The  result 
of  this  more  liberal  view  was  that  the  line  separating 
immune  from  condemned  practices  was  again  one  entirely 
of  degree  and  effect.  At  once  it  was  contended  that  if 
the  commission  or  non-commission  of  the  offense  depended 
upon  criteria  thus  vague  and  governed  by  subjective 
differences  of  opinion,  there  was  a  denial  of  due  process. 
The  contention  was  rejected  by  the  Supreme  Court 
which  pointed  out  that  similar  uncertainty  had  charac- 
terized a  number  of  common-law  offenses,  and  that  it 
would  be  difficult  to  condemn  traditional  common-law 
standards  as  inconsistent  with  due  process  (Nash  v.  U.S., 
229  U.S.  373, 1913).  The  law  thus  stands  unrepealed  at 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  75 

the  present  day,  although  by  the  supplementary  Clayton 
Act  of  1914  a  number  of  practices  are  specifically  defined 
as  unlawful.  More  significant  is  the  new  departure 
which  the  Trade  Commission  Act,  passed  at  the  same 
time,  makes  in  dealing  with  unfair  methods  of  competition. 
There  is  likewise  an  entire  absence  of  definition  in  this 
act,  but  the  act  creates  no  new  criminal  offense.  The 
Trade  Commission  investigates  practices  and  forbids 
them  if  they  are  found  contrary  to  the  act,  its  orders  being 
subject  to  judicial  review,  and  disobedience  to  these 
orders  being  liable  to  punishment.  There  will  thus  be  a 
gradual  definition  of  unlawful  practices  by  administrative 
and  judicial  rulings  without,  however,  penalizing  conduct 
preceding  such  definition.  In  view  of  the  controverted 
issues  beclouding  the  notion  of  unfair  competition,  there 
is  ?orce  hi  the  contention  that  there  is  a  delegation  of  a 
truly  legislative  function,  and  it  may  be  that  a  conserva- 
tive interpretation  of  the  act  will  disappoint  those  who 
expect  that  the  act  will  develop  a  code  of  rules  for  the 
checking  of  various  undesirable  practices,  such  as  price- 
cutting  and  similar  methods  of  doing  business.  But  at 
least  a  rational  attempt  has  been  made  to  improve  upon 
the  method  of  the  anti-trust  legislation,  which  in  the 
matter  of  restraint  of  trade  achieved  very  little,  if  any, 
progress  beyond  the  common  law. 

2.  Legislation  and  the  common  law  of  fraud. — It  is  not 
without  significance  that  when  in  1896  Germany  under- 
took to  legislate  against  unfair  competition  the  resulting 
act  confined  itself  to  dealing  with  certain  distinctly 


76  STANDARDS  OF  AMERICAN  LEGISLATION 

fraudulent  practices,  such  as  false  representations  regard- 
ing quality  or  prices  of  goods  or  sources  of  supply,  mis- 
leading trade  names,  etc.  In  making  fraud  a  necessary 
element  the  law  chose  as  a  criterion  of  illegality  a  form 
of  intrinsically  wrongful  conduct,  which  is  also  as  capable 
of  definition  as  most  other  abstract  legal  notions,  whereas 
an  offense  of  restraint  of  trade,  if  left  by  the  statute 
without  any  qualification,  is  an  economic  absurdity,  and 
if  qualified  by  requiring  injury  to  the  public,  is  too 
indefinite  for  purposes  of  criminal  enforcement.  If  the 
common  law  of  fraud  was  inadequate,  it  was  because  on 
the  civil  side  its  standard  of  commercial  truthfulness  and 
care  in  making  statements  was  not  sufficiently  high 
(Deny  v.  Peek,  14  App.  Cas.  337,  1889),  and  because  on 
the  criminal  side  it  took  cognizance  only  of  aggravated 
forms  of  fraud  (false  tokens) — in  other  words,  because  a 
lenient  view  was  taken,  not  because  the  concept  was 
inherently  too  vague  for  adequate  judicial  definition. 

To  a  considerable  extent  this  leniency  had  been  sup- 
plemented and  remedied  from  a  very  early  period,  as 
far  as  commercial  dealings  were  concerned,  by  elaborate 
systems  of  trade  regulation,  proceeding  first  from  cor- 
porate authorities  and  subsequently  from  Parliament. 
All  these  regulations  purported  to  be  made  in  the  interest 
of  honest  workmanship  and  trade;  but  they  were  likely 
to  suffer  from  the  tendency  to  officious  intermeddling 
resented  by  trade  as  a  hindrance  to  its  development. 
The  English  Statutes  of  the  Realm  show  a  considerable 
number  of  acts,  beginning  in  the  reign  of  Edward  III, 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  77 

and  particularly  numerous  in  the  fifteenth  and  sixteenth 
centuries,  concerning  the  true  making  and  vending  of  cer- 
tain commodities  (wool,  linen,  worsted,  cloth,  leather,  wax, 
tiles,  malt,  oil,  etc.),  and  the  work  of  certain  artisans  and 
manufacturers  (painters,  plasterers,  upholsterers,  etc.). 
After  the  reign  of  James  I  this  legislation  disappears  for 
over  one  hundred  years,  but  a  few  isolated  acts  recur  in 
the  eighteenth  century  (1738,  woolen  cloths,  n  George 
II  28;  1769  and  1777,  brick  and  tile,  10  George  III  49, 
17  George  III  42).  A  long  list  of  these  statutes,  appar- 
ently covering  the  entire  series,  was  repealed  in  1856 
(19  and  20  Victoria,  ch.  64).  In  the  first  revision  of  the 
statutes  of  New  York  the  provisions  for  the  regulation  of 
trade  are  of  almost  equal  number  and  prominence  with 
those  regulating  the  internal  police  of  public  order,  safety, 
and  health;  but  the  constitution  of  1846,  by  abrogat- 
ing the  old  inspection  offices  and  forbidding  their  re- 
establishment,  deprived  the  formerly  well-known  New 
York  system  of  trade  regulation  of  its  most  characteristic 
feature.  Here,  then,  we  have  the  exceptional  case  of  a 
distinct  dropping  of  previous  legislative  restraint,  due  in 
England  to  a  strong  economic  current  against  state 
regulation  of  industry,  and  in  New  York  to  dissatisfaction 
with  the  multitude  of  officials  and  their  perquisites. 
Legislation  for  securing  high  commercial  standards  has 
never  regained  the  importance  which  it  formerly  had, 
and  at  present  there  is  an  inclination  to  support  if  pos- 
sible the  regulation  of  trade  on  grounds  of  safety  or  health 
rather  than  on  the  ground  of  the  prevention  of  fraud. 


78  STANDARDS  OF  AMERICAN  LEGISLATION 

3.  Legislation  and  the  common  law  of  nuisance. — A  com- 
parison of  the  great  mass  of  modern  health,  safety,  and 
morals  legislation  with  the  common  law  of  nuisance 
illustrates  both  the  substitution  of  precise  for  undefined 
restraints  and  prohibitions  and  the  more  effectual  pro- 
tection afforded  by  moving  the  line  of  illegality  farther 
away  from  the  point  of  actual  mischief. 

As  regards  the  former  point,  however,  nuisance  does 
not  stand  quite  on  the  same  footing  as  conspiracy  in 
restraint  of  trade.  The  law  of  nuisance,  it  is  true, 
penalizes  noxious  and  offensive  conditions  without  in- 
dicating precisely  the  point  at  which  criminality  begins; 
but  that  constitutes  a  hardship  only  where  the  offensive 
condition  represents  at  the  same  time  some  legitimate 
and  valuable  interest.  The  significance  of  this  quali- 
fication appears  when  we  compare  the  nuisance  of 
lewdness  and  obscenity  with  what  is  called  a  trade 
nuisance. 

Lewdness  and  obscenity:  The  offense  of  lewdness  and 
obscenity  (the  terms  are  not  carefully  distinguished  from 
each  other)  is  a  matter  of  circumstance,  spirit,  and  pur- 
pose, but  these  are  on  the  whole  so  well  understood  that 
in  the  great  majority  of  cases  it  is  clear  enough  whether 
acts  or  conditions  fall  under  the  criminal  law.  The  lack 
of  precise  demarcation  has  never  presented  any  danger  or 
inconvenience  to  the  essential  interests  of  truth  as  rep- 
resented by  scientific  teaching  and  publication,  for  the 
traditions  of  science  have  always  found  the  propagation 
of  truth  compatible  with  the  selection  of  channels  by 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  79 

which  scandal  and  offense  to  the  community  are  avoided. 
For  the  legitimate  claims  of  art  and  literature  a  reasonably 
safe  guide  is  found  in  established  convention,  which  con- 
cedes very  considerable  license  and  cannot  be  charged 
with  intolerance.  If  the  analogy  of  the  law  of  libel  may 
be  used,  it  might  not  be  incorrect  to  say  that  no  less  than 
an  absolute  privilege  will  satisfy  the  needs  of  science, 
while  art  and  literature  enjoy  a  qualified  privilege  that 
should  depend,  not  only  upon  the  genuineness  of  the 
alleged  motive  and  appeal,  but  also  upon  its  conformity 
to  recognized  canons. 

Undoubtedly  some  difficulty  has  been  experienced  in 
reconciling  supposed  common-law  inhibitions  with  certain 
phases  of  social  propaganda  (particularly  in  connection 
with  attacks  upon  the  confessional  and  the  agitation  for 
birth  control),  and  there  have  been  illiberal  decisions  in 
isolated  cases.  The  privilege  afforded  by  genuineness  of 
motive  and  appeal  ought  to  be  at  least  as  wide  as  in  the 
case  of  art  and  literature,  and  if  we  judge  the  "  living  law  " 
by  established  practice  and  not.  by  exceptional  cases 
which  are  disproportionately  conspicuous  in  the  recorded 
history  of  the  law,  this  seems  to  be  recognized.  Legis- 
lation could  probably  do  no  more  than  circumscribe  with 
more  or  less  elaborateness  limitations  and  qualifications, 
which  are  generally  understood  and  accepted.  A  clear 
and  explicit  authoritative  statement  of  the  law  might  be 
desirable;  but  an  attempt  at  legislation  would  involve 
the  risk  of  narrowing  the  existing  domain  of  freedom  in 
deference  to  sentiment  or  prejudice. 


8o  STANDARDS  OF  AMERICAN  LEGISLATION 

Trade  nuisances:  It  is  probably  also  true  that  an 
exclusive  reference  to  adjudicated  cases  gives  us  an 
incorrect  view  of  the  operation  of  the  common  law  of 
nuisances  in  its  criminal  aspect  so  far  as  it  applies  to 
noxious  trades.  Both  English  and  American  reports 
down  to  very  recent  times  show  cases  in  which  valuable 
industries  have  been  condemned  as  nuisances,  and  the 
number  of  cases  in  which  the  charge  of  nuisance  has  been 
held  to  be  made  out,  or  at  least,  assuming  the  facts  to  be 
true,  to  have  been  stated  with  legal  sufficiency,  is  perhaps 
greater  than  the  number  of  cases  in  which  the  court 
concluded  as  a  matter  of  law  that  there  was  no  nuisance. 
An  altogether  different  picture  of  the  situation  presents 
itself,  however,  when  we  consider  the  enormous  number 
of  offensive  establishments  which  are  known  to  exist  and 
the  small  number  of  cases  that  have  come  before  the 
courts.  But  while  in  the  matter  both  of  offensive 
publications  and  of  trade  nuisances  cases  of  conviction 
where  there  is  a  genuine  claim  of  a  legal  interest  are  the 
exceptional  cases,  the  difference  is  that  in  some  of  the 
cases  of  publications  held  to  be  obscene  it  is  possible  to 
contend  that  the  law  was  misapplied,  while  it  can  hardly 
be  denied  that  the  law  of  trade  nuisances  without  mis- 
application clearly  prejudices  valuable  and  essential 
interests  and  is  quite  inconsistent  with  the  legitimate 
demands  of  industry.  Not  only  danger  to  life,  limb,  and 
health,  but  mere  offensiveness  to  the  senses,  makes  an 
enjoinable,  abatable,  and  technically  a  punishable  nui- 
sance, and  this  irrespective  of  the  economic  benefit  to 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  81 

the  community;  for  it  has  been  said  that  there  will  be 
no  balancing  of  public  benefit  and  public  inconvenience 
(The  King  v.  Ward,  4  A.  &  E.  384),  and  that  there  can  be 
no  such  thing  as  a  reasonable  nuisance  (Attorney-General 
v.  Cole,  i  Chancery  205,  1901) — a  phrase  which  really 
prejudges  the  case,  for  the  question  should  be  whether 
there  can  be  lawful  annoyance  or  discomfort,  a  question 
which  special  legislation  has  in  numerous  cases  answered 
in  the  affirmative. 

The  difficulty  does  not  lie,  however,  as  in  the  case  of 
restraint  of  trade,  in  the  vagueness  of  the  test,  but  in  the 
legal  subordination  of  the  countervailing  interest.  If 
anywhere,  there  is  here  a  case  for  legislative  adjustment, 
and  as  a  matter  of  fact  there  has  been  a  great  deal  of 
legislation  of  a  regulative  character.  The  common  type 
is  that  of  licensing  offensive  or  dangerous  trades  or 
assigning  places  where  they  may  be  carried  on :  this  was 
done  for  gunpowder  and  other  explosives  in  England  in 
1772  (12  George  III  61);  for  all  noxious  trades  in  Massa- 
chusetts in  1785,  and  in  England  by  the  Public  Health 
Act  of  1848  (sec.  64;  now  Act  of  1875,  sec.  112).  Where 
local  bodies  and  administrative  boards  are  authorized  in 
general  terms  to  deal  with  nuisances,  the  difficulty  is 
that  they  cannot  by  their  subordinate  power  supersede 
the  general  criminal  law  or  the  criminal  codes  which 
re-enact  the  common  law  of  nuisance  in  general  terms  so 
as  to  include  everything  that  is  noxious  and  offensive. 
Where,  however,  statutory  power  is  given  expressly  to 
license  noxious  trades,  the  license  ought  surely  to  give 


82  STANDARDS  OF  AMERICAN  LEGISLATION 

immunity  from  prosecution,  and  this  seems  to  be  con- 
ceded in  Massachusetts  (Com.  v.  Rumford  Chemical 
Works,  16  Gray  231;  Com.  v.  Packard,  185  Mass.  64; 
69  N.E.  1067).  But  England,  while  penalizing  the 
establishment  of  certain  trades  without  the  consent  of 
the  proper  authorities,  expressly  refrains  from  legalizing 
anything  that  would  be  a  nuisance  at  common  law.  The 
same  policy  is  pursued  by  the  series  of  the  so-called 
Alkali  Acts  extending  from  1863  to  1906,  which  save  any 
remedy  by  action,  indictment,  or  otherwise,  for  what 
would  be  deemed  a  nuisance  if  it  were  not  for  the  act. 
The  Alkali  Act  of  1906  is  the  most  conspicuous  example 
on  the  English  statute  book  of  legislation  standardizing 
a  trade  that  is  inevitably  noxious  to  a  certain  extent, 
and  it  seems  to  be  without  exact  parallel  in  American 
legislation.  It  illustrates  not  only  the  most  appropriate 
but  the  only  adequate  method  of  dealing  with  necessarily 
offensive  industries,  and  logically  such  legislation  ought 
to  supersede  the  common  law.  Indeed,  for  purposes  of 
criminal  enforcement  that  must  practically  be  the  result 
of  well-constructed  legislation,  any  saving  clause  to  the 
contrary  notwithstanding.  It  is  a  well-known  canon  of 
construction  that  a  legislative  intent  to  abrogate  the 
common  law  will  not  be  readily  assumed  or  implied,  and 
the  unwillingness  to  supersede  common-law  standards  is 
a  marked  and  common  feature  of  legislative  policy.  Yet 
it  is  just  as  true  that  where  the  defects  of  the  common  law 
have  induced  legislation,  and  legislation  has  dealt  with 
the  problem  in  a  superior  manner,  the  more  effective  must 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  83 

drive  out  the  less  effective  rule.  A  perfunctory  statutory 
denial  of  this  principle  will  be  of  little  avail  against  its 
actual  operation. 

Health  and  safety  legislation:  Our  entire  legislation 
for  the  promotion  of  health  and  safety  is,  as  it  were,  a 
code  partly  elaborating,  but  to  a  much  larger  extent 
supplementing,  the  common  law  of  nuisances.  The  call 
for  legislation  has  been  due  in  part  to  the  conviction  that 
the  common  law  left  too  narrow  a  margin  between 
illegality  and  actual  injury,  and,  so  far  as  health  and  safety 
were  concerned,  there  was  also  ample  occasion  to  meet 
dangers  previously  unknown  and  to  apply  to  many  of 
them  newly  discovered  remedies.  The  progress  in  public 
sanitation  bears  testimony  to  the  beneficial  effects  of 
legislation  largely  based  upon  the  discoveries  of  science. 

But  this  scientific  foundation  is  by  no  means  equally 
secure  and  uncontroverted  in  all  phases  of  health  and 
safety  legislation,  and  it  fails  almost  entirely  where 
legislation  deals  with  problems  in  which  moral  and 
psychological  factors  predominate.  And  in  the  absence 
of  scientific  certainty  it  must  be  borne  in  mind  that  the 
farther  back  from  the  point  of  imminent  danger  the  law 
draws  the  safety  line  of  police  regulation,  so  much  the 
greater  is  the  possibility  that  legislative  interference  is 
unwarranted.  We  may  apply  to  the  relation  between 
common  law  and  police  regulation  the  simile  of  the 
citadel  and  its  outworks  which  Professor  Jhering  used  in 
order  to  characterize  the  relation  between  morality  and 
convention.  Protective  works  placed  well  hi  advance 


84  STANDARDS  OF  AMERICAN  LEGISLATION 

of  the  main  defenses  diminish  the  chances  of  a  successful 
assault  upon  the  latter,  but  they  also  enlarge  the  zone 
which  is  withdrawn  from  normal  and  more  profitable 
occupation.  So  when  the  law  combats  tendencies  in 
order  to  check  evil  it  may  easily  hinder  legitimate  activity. 
If  free  action  is  as  essential  to  the  interests  of  the  com- 
munity as  protection  from  harm,  the  remoteness  or  conjec- 
tural character  of  the  danger  is  in  itself  a  strong  argument 
against  the  policy  of  legislative  interference  and,  if  liberty 
is  held  to  be  a  constitutional  right,  against  its  validity. 

B.   THE  PROBLEM  OF  DEALING  WITH  APPREHENDED 
TENDENCIES  AND  CONJECTURAL  DANGERS 

Until  the  nineteenth  century  this  problem  was  not 
acute.  The  modern  legislation  against  gambling  began 
in  the  middle  of  the  eighteenth  century  when  a  statute  of 
George  II  (12  George  II,  ch.  28)  prohibited  and  penalized 
certain  exploiting  schemes  and  games  of  chance;  but 
while  this  legislation  was  broad  enough  to  bring  now 
and  then  rather  innocent  pastimes  under  the  ban  of  the 
law,  the  interests  affected  were  on  the  whole  not  such  as 
were  likely  to  put  forward  open  claims  for  consideration. 
The  method  of  dealing  with  the  abuse  of  intoxicating 
liquors  had  from  an  early  period  (1552)  been  the  system 
of  licensing  the  trade,  which  was  tolerant  both  of  traffic 
and  consumption. 

Liquor. — The  outstanding  legislative  problem  in  con- 
nection with  intoxicating  liquors  is  presented  by  the  policy 
of  prohibition.  Prohibition  is  the  extreme  type  of  police 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  85 

legislation;  prohibition,  written  into  the  Constitution, 
seeks  to  fix  this  extreme  type  by  protecting  it  from  repeal 
by  the  exercise  of  ordinary  legislative  power.  Practi- 
cally, however,  the  Constitution  will  depend  upon  auxil- 
iary legislation.  Mere  words  of  prohibition  in  the  Con- 
stitution will  outlaw  the  liquor  traffic,  but  will  not  penal- 
ize it,  and  while  penalization  by  the  Constitution  itself  is 
not  absolutely  impossible,  it  is  unlikely,  and  the  details  of 
enforcement  will  in  any  event  have  to  be  left  to  the  legis- 
lature. Constitutional  prohibition  will  therefore  not 
entirely  remove  the  liquor  issue  from  the  domain  of 
legislative  policy;  and  a  great  deal  will  be  left  to  legis- 
lative discretion  if  the  constitution,  by  speaking  merely 
of  intoxicating  liquors,  leaves  the  way  open  for  varying 
statutory  definitions  of  the  alcoholic  content  that  makes 
the  liquor  intoxicating.  Moreover,  toleration  of  alco- 
holic liquor  for  non-beverage  purpose  will  call  for  the 
continuation  of  some  system  of  licensing.  Enforcement 
under  a  regime  of  prohibition  will  require  greater  effort 
than  where  legalization  admits  of  regulated  supervision 
and  administrative  directing  powers.  The  whole  matter 
will  be  thrown  necessarily  into  the  machinery  of  criminal 
justice.  Drastic  measures  of  repression  (search  and 
seizure)  will  form  a  conspicuous  feature  of  enforcement. 
These  will  encounter  the  difficulties  presented  by  the 
attempts  to  enforce  any  law  not  supported  by  practical 
unanimity  of  what  may  be  called  "respectable"  public 
opinion.  The  difficulty  is  greatly  enhanced,  if  prohibition 
stops  short  of  outlawing  liquor  entirely,  and  leaves  both 


86  STANDARDS  OF  AMERICAN  LEGISLATION 

possession  and  consumption  lawful.  This  will  neces- 
sarily add  to  the  public  confusion  as  to  the  right  and 
wrong  of  the  entire  matter,  and  will  complicate  the  prob- 
lem of  enforcement,  both  from  a  moral  and  from  a  tech- 
nical point  of  view.  A  policy  having  so  many  drawbacks 
would  probably  not  be  ventured  upon  if  it  had  not  at  the 
same  time  the  character  of  a  moral  crusade.  If  it  can  be 
justified  on  rational  grounds,  it  must  be  as  a  long-distance 
policy,  as  an  educational  measure,  the  benefits  of  which 
will  be  reaped  by  the  coming  generation;  but  if  that 
view  is  admissible,  it  is  also  true  that  the  price  paid  in 
temporary  demoralization  of  the  law  is  a  high  one.  Per- 
haps the  time  has  not  arrived  for  passing  final  judgment. 

Gambling. — With  regard  to  gambling  the  legitimacy 
of  the  policy  of  prohibition  is  generally  conceded.  In 
Prussia  the  state  makes  a  concession  to  the  gambling 
spirit  by  conducting  a  state  lottery,  but  prohibits  private 
lotteries  except  under  special  permit  granted  for  public 
or  quasi-public  purposes.  In  a  number  of  foreign 
countries  municipal  bond  issues  are  permitted  which 
carry  chances  of  large  premiums.  The  keeping  of  public 
gambling-places,  such  as  existed  in  many  of  the  European 
resorts,  has  been  prohibited  in  the  course  of  the  last  fifty 
years,  last  by  Belgium  upon  payment  of  compensation 
to  the  municipalities  interested.  The  Prince  of  Monaco 
derives  his  revenues  from  a  gambling  establishment,  but 
interdicts  its  use  to  his  own  subjects. 

In  the  United  States  the  prohibition  of  all  forms  of 
gambling  is  universal,  and  some  states  express  it  in  their 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  87 

constitutions.  The  federal  government  supports  this 
policy  by  excluding  all  matter  concerning  lotteries  or 
"other  enterprises  offering  prizes  dependent  upon  lot  or 
chance,"  not  only  from  the  mails,  but  from  interstate  and 
foreign  commerce,  and  it  has  been  decided  that  even 
foreign  government  premium  loans  are  within  this  pro- 
hibition (147  U.S.  449).  While  English  legislation  con- 
fines itself  to  games  of  chance,  lotteries,  and  the  keeping 
of  places  for  betting,  American  statutes  strike  at  all 
playing  or  betting  for  money,  permitting  rewards  for 
skill  only  if  they  are  offered  by  third  parties,  and  other- 
wise allowing  playing  only  for  pleasure  or  recreation 
where  no  party  can  have  any  contingent  loss  or  gain.1 
The  terms  of  some  statutes  make  the  prohibition  perhaps 
more  sweeping  than  intended  and  appear  to  penalize 
common  practices  which  it  would  be  impossible  to  sup- 
press; but  in  the  absence  of  any  attempt  to  enforce  the 
law  according  to  its  letter  this  phase  of  it  presents  no 
problem  of  any  significance. 

Horse  racing. — Important  interests  are,  however,  af- 
fected by  the  application  of  the  statutes  against  betting 
and  gaming  to  horse  races.  In  view  of  the  connection 
of  this  sport  with  the  improvement  of  the  breed  of 
horses,  a  certain  measure  of  legislative  toleration  has 
been  accorded  to  it,  resulting  under  the  laws  of  some 
states  in  systems  of  licenses  with  incidental  restrictions. 
In  New  York  early  statutes  declared  all  races  not  expressly 
authorized  by  law  to  be  public  nuisances  (i  Rev.  Stat. 

1  Freund,  Police  Power,  sec.  192. 


88  STANDARDS  OF  AMERICAN  LEGISLATION 

672,  sec.  55).  The  constitution  of  1894  (I,  sec.  9)  pro- 
hibited pool-selling  and  bookmaking  in  express  terms  and 
directed  the  legislature  to  pass  appropriate  laws  to 
prevent  offenses  against  the  provision.  The  legislature 
thereupon  in  1895  (ch.  570)  passed  an  act  authorizing  and 
regulating  horse  racing,  which  prohibited  betting  upon 
the  result  of  any  race  and  forfeited  any  money  or  property 
staked  to  the  other  party  or  to  the  depositor,  but  failed 
to  make  betting  a  penal  offense.  The  practice  of  betting 
thus  remained  virtually  unchecked.  Governor  Hughes 
considered  that  this  legislation  was  not  a  compliance 
in  good  faith  with  the  constitutional  mandate,  and  in  a 
memorable  legislative  campaign  succeeded  in  having 
a  stringent  statute  enacted  which  makes  pool-selling, 
bookmaking,  the  receiving  or  recording  of  bets,  and  any 
act  in  aid  thereof  a  misdemeanor  punishable  by  imprison- 
ment in  the  penitentiary  or  county  jail,  and  does  not 
even  permit  the  alternative  of  a  fine  (Laws  of  1908,  ch. 
570).  This  measure  was  reinforced  in  1910  by  the  repeal 
of  a  section  of  the  existing  law  relating  to  trotting  asso- 
ciations (Membership  Corporation  Law,  sec.  291)  that 
had  secured  to  directors  complying  with  the  law  immun- 
ity from  liability  for  acts  done  on  the  racetrack.  It  is 
understood  that  this  drastic  legislation  has  effectually 
done  away  with  the  previous  system  of  legalized  gambling, 
but  that  it  has  also  been  prejudicial  if  not  fatal  to  the 
raising  of  thoroughbred  horses  in  the  United  States.1 

1  Outing,  CLXII,  1 88.  A  partial  revival  of  horse  racing  is  said  to  be 
due  to  a  decision  holding  that  betting  without  the  professional  element  of 
bookmaking  is  not  punishable  (People  v.  Geltem,  137  N.Y.  Supp.  670,  1912). 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  89 

Stock  dealings,  options,  and  futures. — Another  interest 
to  which  gambling  practices  attach  themselves,  of  far 
greater  importance  than  horse  racing,  is  the  dealing  in 
stocks.  Even  in  France  and  Germany,  where  stock  ex- 
changes are  institutions  under  government  supervision, 
a  considerable  proportion  of  the  transactions  is  nothing 
but  betting  on  the  rise  or  fall  of  prices.  In  1896  a 
German  statute  undertook  to  make  the  validity  of  deal- 
ings of  this  character  dependent  upon  the  registration  of 
the  parties  in  an  exchange  register,  with  the  result  that 
speculation  was  largely  diverted  to  foreign  exchanges, 
and  it  was  deemed  necessary  in  1908  to  abrogate  the  re- 
quirement. The  prohibition  of  private  non-professional 
dealings  had  proved  impracticable. 

In  America  no  systematic  regulation  of  stock  or  other 
exchanges  has  been  attempted  by  legislation,  but  places 
which  are  not  regular  exchanges  for  legitimate  business, 
being  kept  merely  for  the  pretended  buying  and  selling 
of  stock,  produce,  etc.,  without  any  bona  fide  intention  of 
actually  transferring  or  accepting  the  securities  or  com- 
modities, are  prohibited  in  a  number  of  states,  and 
apparently  no  difficulty  has  been  found  in  distinguishing 
the  legitimate  exchange  from  the  ' '  bucket  shop . "  D  efini- 
tions  of  these  places  are  found  in  statutes  of  Illinois, 
Missouri,  and  Massachusetts,  and  in  a  subsequently 
repealed  act  of  Congress  of  1901  (Vol.  31,  St.  at  L., 

P-  943). 

The  prohibition  of  fictitious  transactions  on  regular 
exchanges  is  theoretically  a  simple  matter  and  is  quite 


90  STANDARDS  OF  AMERICAN  LEGISLATION 

common  in  America,1  but  the  proof  of  the  character  of 
the  transaction  is  attended  with  difficulty.  Proceeding 
upon  the  theory  that  the  great  majority  of  option  sales  and 
sales  for  future  delivery  are  forms  of  disguised  gambling, 
legislation  has  been  enacted  repeatedly  making  these 
transactions  altogether  illegal.  This  was  done  by  an 
English  statute  of  1737,  and  a  statute  of  New  York  of 
1812,  forbidding  contracts  for  the  sale  of  securities  not 
owned  by  the  seller,  and  by  a  qualified  provision  to  the 
same  effect  of  the  French  Penal  Code  (sec.  422).  Illinois 
made  it  a  misdemeanor  to  make  options  of  purchase  or 
sale  of  any  commodity  (Crim.  Code,  sec.  130),  and 
California  placed  a  provision  in  the  state  constitution 
making  void  all  contracts  for  the  sale  of  shares  of  stock 
on  margin  or  to  be  delivered  at  a  future  day  (IV,  26). 
It  is  obvious  that  in  outlawing  all  contracts  for  options 
or  "futures"  legislation  strikes  at  transactions  which 
under  some  circumstances  may  well  be  necessary  for  the 
protection  of  valuable  interests.  Is  it  reasonable  thus 
to  interdict  legitimate  business  because  it  fosters  a  pro- 
pensity to  gambling  and  frequently  serves  as  a  cover 
for  it?  The  Supreme  Court  of  Illinois  held  that  this 
was  a  matter  for  legislative  discretion — in  other  words, 
that  it  is  not  in  the  constitutional  sense  unreasonable — 
and  the  Supreme  Court  of  the  United  States  has  affirmed 
this  view  (186  111.  43;  184  U.S.  425).  In  like  manner  the 
Supreme  Court  sustained  the  equally  sweeping  prohibi- 
tion contained  in  the  constitution  of  California  (187  U.S. 

'Freund,  Police  Power,  sec.  201,  note  35. 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  91 

606),  again  expressing  its  deference  to  the  legislative 
judgment.  The  prohibition  thus  being  "vindicated" 
from  the  point  of  view  of  constitutional  law,  it  is  extremely 
instructive  to  observe  its  failure  to  vindicate  itself  by 
the  test  of  practical  experience.  The  New  York  law  was 
repealed  in  1856,  the  English  statute  in  1860,  the  French 
provision  in  1885.  Illinois  amended  the  Criminal  Code 
in  1913  by  confining  the  prohibition  of  option  contracts 
to  cases  where  it  is  intended  to  settle  by  payment  of 
differences  only,  and  in  California  a  constitutional 
amendment  to  the  same  effect  was  adopted  in  1908 
(printed  in  123  Pac.  278).  Thus  in  practically  all  com- 
munities containing  important  centers  of  trade  there  has 
been  a  deliberate  recession  from  the  policy  of  outlawing 
a  legitimate  business  because  it  encourages  gambling, 
and  if  the  lessons  of  history  are  worth  considering  in 
determining  the  bounds  of  legislative  power,  we  should 
conclude  that  such  a  policy  is  unenforceable,  and  there- 
fore intrinsically  unsound. 

Oleomargarine  legislation. — The  problem  of  conjectural 
dangers  has  also  been  conspicuously  illustrated  by  the 
legislation  against  oleomargarine.  Pure-food  laws  are 
directed  against  unwholesome  and  against  fraudulently 
prepared  products.  The  justification  is  stronger  when 
health  is  involved.  All  imitation  has  in  it  an  element, 
slight  though  it  may  be,  of  deception,  yet  it  would  be 
unreasonable  to  prohibit  customary  imitations  or  to 
restrict  familiar  trade  designations  to  products  of  a  pre- 
scribed quality  when  settled  usage  is  thereby  interfered 


92  STANDARDS  OF  AMERICAN  LEGISLATION 

with.  To  such  legislation  the  observation  may  easily 
become  applicable  that  was  made  with  reference  to  the 
strict  wine  law  enacted  for  Germany  some  years  ago, 
that  the  consumer  knows  now  what  he  gets,  but  can 
no  longer  get  what  he  wants.  However,  legislation 
seeking  to  inculcate  a  stricter  standard  of  commercial 
honesty  than  purchasers  or  consumers  desire,  while  it 
may  be  unwise,  can  hardly  be  called  illegitimate  unless 
established  usage  has  ripened  into  vested  interest. 

Oleomargarine  legislation  which  confines  itself  to 
prohibiting  the  manufacture  of  oleaginous  products  in 
semblance  of  butter,  or  which  requires  distinct  labeling 
or  packing,  is  common  in  this  and  in  other  countries,  and, 
whatever  its  motives,  has  been  uniformly  sustained  by 
American  courts;  it  is  particularly  to  be  observed  that 
oleomargarine  thus  made  in  imitation  of  butter  is  held, 
not  to  be  a  legitimate  commercial  product,  but  subject 
to  state  law,  though  imported  from  other  states  and 
sold  in  original  packages  (Plumley  v.  Massachusetts,  155 
U.S.  461).  Perhaps  the  same  would  be  true  of  a  law 
forbidding  oleomargarine  not  deceptively  made  to  be 
designated  as  butter. 

It  is  an  entirely  different  matter  for  legislation  to  pro- 
hibit the  manufacture  out  of  any  oleaginous  substance 
other  than  that  produced  from  milk  or  cream  of  any 
article  designed  to  take  the  place  of  butter,  that  is  to  say, 
to  prohibit  honest  substitutes  as  well  as  imitations,  as 
was  done  by  the  statutes  of  several  states.  The  statute 
of  New  York  was  declared  unconstitutional  (People  v. 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  93 

Marx,  99  N.Y.  377),  while  that  of  Pennsylvania  was 
sustained,  not  only  by  the  highest  court  of  the  state,  but 
also  by  the  federal  Supreme  Court  (Powell  v.  Pennsylvania, 
127  U.S.  627).  The  decision  in  New  York  proceeded 
upon  the  principle  that  an  industry  may  not  be  pro- 
hibited in  order  to  protect  another  industry  from  com- 
petition— a  principle  to  which  the  federal  Supreme  Court 
would  have  readily  subscribed.  The  federal  Supreme 
Court,  on  the  other  hand,  relied  at  least  in  part  upon  the 
possible  injuriousness  to  health  of  oleomargarine  which 
presented  a  question  of  fact  for  the  legislature  to  decide, 
so  that  the  court  below  was  held  justified  in  refusing 
testimony  to  disprove  the  legislative  finding,  while  the 
courts  in  New  York  admitted  such  testimony  and  satisfied 
themselves  that  oleomargarine  was  not  unwholesome. 
The  question  whether  a  valuable  and  useful  industry 
may  be  entirely  suppressed  in  order  to  stop  fraudulent 
practices  connected  with  it  which  the  legislature  feels 
unable  to  deal  with  effectually  by  a  system  of  regulation 
is  thus  not  dealt  with  by  the  New  York  decision,  and  in 
the  federal  decision  is  entirely  subordinated  to  the  con- 
sideration that  the  manufactured  product  was  possibly 
injurious,  and  that  its  entire  suppression  was  called  for  on 
that  ground.  Yet  that  was  the  real  question  at  issue 
and  one  of  fundamental  importance,  and  the  decision  of 
the  federal  Supreme  Court  at  least  seemed  to  incline  to 
an  affirmative  answer.  But  subsequently  the  Supreme 
Court  vindicated  for  the  product  which  it  had  thus 
permitted  to  be  outlawed  as  a  matter  of  domestic  state 


94  STANDARDS  OF  AMERICAN  LEGISLATION 

legislation  the  status  and  immunity  of  an  article  of 
commerce,  thus  denying  for  the  purposes  of  interstate 
commerce  the  validity  of  a  prohibition  of  the  substitute 
product  (Schollenberger  v.  Pennsylvania,  171  U.S.  i), 
while  it  had  conceded  the  validity  of  the  prohibition  of 
the  imitated  product.  It  is  true  that  Congress  subse- 
quently withdrew  from  oleomargarine  the  protection  of 
the  original-package  doctrine  by  express  legislation  (Act 
of  May  9,  1902),  thus  apparently  again  abandoning  the 
substitute  product  to  prohibitory  state  laws.  But  since 
the  Supreme  Court  now  takes  judicial  notice  of  the 
wholesomeness  of  oleomargarine,  most  of  the  reasoning 
of  the  earlier  decision  has  lost  its  force,  and  it  is  more 
than  doubtful  whether  that  decision  would  stand  at 
the  present  day.  As  a  matter  of  fact  the  decision  has 
become  substanceless.  As  far  as  can  be  gathered  from 
compilations  made  by  the  Department  of  Agriculture, 
the  states  which  prohibited  the  manufacture  of  oleomar- 
garine were  New  York,  Pennsylvania,  Maryland,  and 
Minnesota.  The  act  of  New  York  was  annulled  by 
judicial  decision,  that  of  Pennsylvania  was  repealed  in 
1899,  that  of  Maryland  in  1900,  and  the  present  statutes 
of  Minnesota  no  longer  show  the  prohibition.  As  in 
the  matter  of  the  prohibition  of  options  and  futures,  the 
history  of  legislation  must  be  read  as  a  supplement  to  the 
history  of  judicial  decisions.  That  the  fight  is  won  in 
the  courts  settles  nothing  if  the  principle  is  unsound. 
The  courts  tell  us  that  valuable  interests  may  be  sacri- 
ficed to  conjectural  apprehensions,  but  the  practical 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  95 

needs  of  the  community  reject  and  finally  overthrow  the 
conclusion. 

That  the  legislature  should  even  attempt  to  suppress 
altogether  an  economic  function  of  undeniable  utility,  as 
was  done  in  the  case  of  options  and  futures,  and  again  in 
the  case  of  oleomargarine,  must  be  an  altogether  excep- 
tional occurrence;  such  isolated  other  instances  as  we 
may  find  in  the  history  of  legislation,  as,  e.g.,  the  pro- 
hibition of  peddling  hi  New  York  and  in  Pennsylvania 
toward  the  end  of  the  eighteenth  century,  have  been  of 
only  temporary  duration.  No  sane  legislative  policy 
would  allow  an  even  serious  danger  to  human  safety  to 
stand  in  the  way  of  real  economic  utilities.  The  legend 
on  the  old  town  hall  of  the  Hanse  town  of  Lubeck, 
Namgare  necesse  est,  vivere  non  est  necesse,  has  found 
manifold  applications  since  great  mechanical  forces  have 
been  pressed  into  the  service  of  transportation  and 
manufacture.  Thus  the  suppression  of  useful  industries, 
while  it  illustrates  admirably  the  triumph  of  principle 
over  judicial  doctrine,  presents  no  problem  of  great 
practical  importance. 

Conjectural  dangers  and  the  question  of  fact. — Where 
the  basis  of  legislation  is  some  wrong  to  be  remedied  or 
some  danger  to  be  averted,  the  rightfulness  of  a  law  may 
depend  upon  a  question  of  fact.  However,  in  legislation, 
as  in  the  administration  of  justice,  error  due  to  human 
fallibility  has  to  be  reckoned  with,  and  it  would  be 
impossible  to  maintain  that  a  mistake  of  fact  as  to 
underlying  evils  should  affect  the  validity  of  a  statute. 


96  STANDARDS  OF  AMERICAN  LEGISLATION 

Such  a  doctrine  would  invest  the  courts  with  a  revisory 
function  which  they  were  not  intended  and  are  not 
qualified  to  exercise.  Courts  are  without  adequate 
facilities  for  the  re-examination  of  the  complex  social  and 
economic  phenomena  of  which  the  legislature  is  supposed 
to  have  taken  cognizance,  and  it  is  not  likely  that  they 
will  be  furnished  with  investigating  machinery  that  will 
equal  in  effectiveness  the  sources  of  information  at  the 
disposal  of  a  legislative  body  or  of  a  well-equipped  admin- 
istrative bureau  or  commission. 

Questions  of  fact  have  furnished  important  issues  in 
sanitary  and  hi  labor  legislation.  Apart  from  the  alleged 
injuriousness  of  oleomargarine,  which  has  already  been 
referred  to,  controversies  have  arisen  with  regard  to  the 
qualities  of  certain  food  ingredients  and  preservatives. 
The  use  of  alum  in  the  manufacture  of  bread  was  at  one 
time  prohibited  in  Missouri  (State  v.  Layton,  150  Mo. 
474),  but  the  prohibition  was  subsequently  removed 
(Laws  of  1905,  p.  130),  while  it  is  still  in  force  in  England. 
The  use  of  boric  acid  in  the  preparation  of  food  is  now 
forbidden  by  some  laws,  while  others  are  silent  or  permit 
its  use  in  small  quantities;  the  prohibition  has  been 
sustained  by  the  Supreme  Court  of  the  United  States 
(Price  v.  Illinois,  238  U.S.  446).  The  limitation  of  hours 
of  labor  has  been  defended  for  men  engaged  in  certain 
occupations,  and  for  women  more  generally,  on  the 
ground  that  unduly  prolonged  work  is  physically  harm- 
ful, a  contention  which  in  that  general  form  is  certainly 
not  uncontroverted.  Quite  recently  the  adequate  foun- 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  97 

dation  in  fact  of  the  so-called  full-crew  laws  has  been 
vigorously  contested. 

In  most  of  these  cases  there  has  been  room  for  genuine 
difference  of  opinion,  and  in  the  most  conspicuous  case 
in  which  injury  was  clearly  disproved,  that  of  oleomar- 
garine, the  legislative  ban  was  lifted  after  a  relatively 
brief  period.  Mistakes  may  also  occur  where  there  is 
practically  no  difference  of  opinion.  The  old  saying 
that  common  error  makes  law  applies  to  the  effect  of 
widespread  beliefs  concerning  scientific  matters;  thus 
sanitary  authorities  were  originally  invested  with  their 
extensive  powers  over  property  and  industries  upon  the 
theory  then  prevailing  that  sewage,  garbage,  and  the 
exhalations  from  slaughterhouses  and  other  offensive 
industrial  establishments  poison  the  air  and  that  the 
noxious  vapors  thus  produced  cause  disease;  this  theory 
is  now  rejected,  but  while  it  was  universally  accepted  it 
furnished  a  valid  ground  for  legislation,  and  the  offensive 
conditions  justified  interference  hi  any  event.  So  long 
as  there  is  respectable  opinion  holding  that  miscegena- 
tion or  marriage  between  near  relatives  is  physiologically 
undesirable,  legislation  can  hardly  be  successfully  ques- 
tioned; indeed,  a  strong  and  universal  sentiment  may  in 
itself  furnish  a  sufficient  foundation  for  law,  as  is  demon- 
strated by  the  illegality  of  marriages  universally  regarded 
as  incestuous,  which  certainly  does  not  depend  for  its 
justification  upon  ascertainable  biological  dangers. 

The  courts  have  repeatedly  professed  their  ignorance 
of  the  complex  scientific,  sociological,  or  economic 


98  STANDARDS  OF  AMERICAN  LEGISLATION 

factors  with  which  legislatures  have  to  deal  and  have 
disclaimed  the  power  to  question  legislative  findings  of 
fact;  but  the  practice  has  not  always  been  according  to 
the  profession,  and,  unfortunately  in  the  one  case  in 
which  the  Supreme  Court  of  the  United  States  took  it 
upon  itself  to  override  the  legislative  judgment  as  to  con- 
ditions and  needs,  the  well-known  New  York  Bakeshop 
case  (Lochner  v.  N.Y.,  198  U.S.  45),  the  general  opinion 
is  now  that  the  legislature  was  right  and  that  the  court 
was  wrong.  The  protest  against  this  judicial  blunder  was 
such  that  courts  have  since  been  more  reluctant  than 
ever  to  set  their  impressions  against  those  of  the  legis- 
lature and  have  reversed  previous  rulings  in  which  the 
legislative  conclusion  had  been  repudiated  (People  v. 
Charles  Schweinler  Press,  214  N.Y.  395). 

The  problem  of  doubtful  facts  is  one  that  only  the 
legislature  itself  can  handle  adequately,  but  it  can 
hardly  be  denied  that  a  proper  regard  for  constitutional 
rights  demands  more  careful  legislative  methods  than 
have  been  used  in  many  cases  in  the  past.  If  error  of 
fact  does  not  vitiate  judicial  judgment,  it  is  because  due 
process  in  judicial  proceedings  means  some  assurance  of 
careful  consideration  before  a  conclusion  is  reached. 
Due  process  is  now  treated  as  a  requirement  applicable 
to  legislation,  and  it  is  significant  that  our  courts  have 
not  accepted  the  mere  compliance  with  the  constitu- 
tionally prescribed  steps  in  the  enactment  of  a  law  as 
satisfying  the  requirement.  On  the  other  hand,  the 
courts  cannot  well  prescribe  for  the  legislature  a  method 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  99 

of  procedure  that  will  insure  a  specific  evidential  basis 
for  legislative  conclusions,  for  it  is  inevitable  that  now 
and  then  measures  should  have  to  be  adopted  upon  less 
than  convincing  proof.  Legislation  is  not  yet  pure 
administration  of  justice.  What  can  be  justly  insisted 
upon  at  the  present  time  is  only,  first,  that  conclusions 
should  not  be  reached  in  the  face  of  undisputed  evidence 
to  the  contrary,  and,  secondly,  that  in  the  absence  of 
evidence  the  assumed  basis  of  legislation  should  not  be 
opposed  to  understandings  and  beliefs  so  general  and  so 
strong  that  the  courts  are  compelled  to  take  judicial 
notice  of  them.  And  as  a  matter  of  fact  the  basis  of 
legislation  is  to  this  extent  controlled  by  the  courts. 
The  time  may  come  when  courts  will  be  justified  in 
demanding  that  the  legislature  shall  act  only  upon 
some  evidence  somewhere  placed  on  record,  but  that 
time  has  hardly  yet  arrived.  In  the  meanwhile  it  is  well 
to  bear  in  mind  that  the  legislative  practice  accords  in 
substance  with  what  must  be  laid  down  as  the  present 
minimum  requirement,  and  that  if  there  have  been 
instances  of  conclusions  reached  upon  a  totally  unsatis- 
factory basis  the  courts  have  sinned  in  that  respect  no 
less  than  the  legislatures. 

Conjectural  dangers  and  the  question  of  good  faith. — 
Another  kind  of  difficulty  is  presented  by  the  many 
license  requirements  of  recent  years.  The  breaking 
away  from  the  old  system  of  apprenticeship  and  quali- 
fication tests  which  resulted  in  closed  trades,  and  the 
substitution  of  the  untrammeled  right  to  engage  in  lawful 


too  STANDARDS  OF  AMERICAN  LEGISLATION 

business  must  be  regarded  as  one  of  the  great  gains  of 
the  nineteenth  century.  This  right  has  been  proclaimed 
as  a  principle  by  the  German  Trade  Code,  and  our 
courts  tend  to  regard  it  as  a  constitutional  right,  though 
it  is  not  specifically  recognized  as  such  by  any  American 
state  constitution.  Yet  it  is  a  right  everywhere  subject 
to  many  exceptions,  established  for  businesses  or  profes- 
sions the  improper  conduct  of  which  may  touch  the 
public  interest  in  some  prejudicial  manner.  And  it  is 
impossible  to  confine  these  exceptions  to  any  specific 
grounds,  as,  for  instance,  the  danger  to  health  or  morals, 
for  the  law  imposes  qualification  tests  relating  to  character 
where  the  only  danger  to  be  guarded  against  is  that  of 
possible  fraud,  as  in  the  case  of  peddlers.  The  justifica- 
tion of  the  exceptions  lies  entirely  in  the  degree  and  not 
in  the  kind  of  danger  which  unlicensed  activity  carries 
with  it.  The  old  system  was  by  no  means  inherently 
irrational,  for  the  community  has  a  very  positive  interest 
in  the  quality  of  industrial  or  professional  service.  The 
former  policy  has  merely  yielded  to  the  conviction  that 
systematic  restriction  of  trade  is  in  the  long  run  more 
prejudicial  to  industrial  development  than  occasional 
inconvenience  or  abuse  due  to  incompetence  or  irre- 
sponsibility. If  in  recent  years  license  requirements  have 
been  established  for  plumbers,  barbers,  undertakers,  and 
horseshoers,  a  plausible  ground  was  undoubtedly  advanced 
for  each  category,  and  it  would  not  be  impossible  to 
make  a  case  for  licensing  grocers,  tailors,  or  shoemakers. 
Apart  from  general  principle  any  license  requirement 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  101 

may  be  rendered  constitutionally  objectionable  by 
special  features,  as,  for  instance,  by  a  qualification  test 
which  is  manifestly  irrelevant  (e.g.,  requiring  an  under- 
taker to  show  skill  in  embalming  when  he  does  not 
propose  to  carry  on  the  business  of  embalming  with  his 
general  business,  People  v.  Ringe,  197  N.Y.  143;  State  v. 
Rice,  115  Md.  317),  or  by  an  apprenticeship  requirement 
which  allows  the  trade  to  restrict  its  numbers  when  the 
necessary  qualification  can  be  as  well  obtained  in  other 
ways  (State  v.  Walker,  48  Wash.  8).  But  in  the  absence 
of  such  specific  objections  the  courts  have  generally  felt 
obliged,  though  with  reluctance,  to  sustain  the  legislation. 
The  truth  is  that  it  is  difficult  to  question  such  laws 
upon  any  other  ground  than  the  genuineness  of  their 
avowed  purpose.  Some  time  ago  it  was  proposed  in 
Chicago  to  provide  by  ordinance  that  no  motorman 
should  be  employed  on  a  street-car  line  unless  he  had  had 
twenty-one  days'  instruction  from  some  motorman  who 
had  been  employed  for  the  preceding  twelve  months  on  a 
street-car  line  in  the  city.  The  ordinance  was  proposed 
on  the  outbreak  of  a  strike,  with  the  conceded  object  of 
keeping  strike  breakers  from  the  city,  and  upon  the 
settlement  of  the  strike  it  was  quietly  dropped.  It  would 
not  be  easy  to  find  in  any  existing  statute  a  parallel  to 
this  barefaced  perversion  of  power.  But  it  is  generally 
charged  and  not  denied  that  much  of  the  new  legislation 
is  sought  for  the  purpose  of  allowing  the  trade  to  control 
its  members  and,  if  possible,  its  numbers.  In  connection 
with  the  legislation  for  plumbers  the  Supreme  Court  of 


102  STANDARDS  OF  AMERICAN  LEGISLATION 

Washington  said  (State  v.  Smith,  42  Wash.  237):  "We 
are  not  permitted  to  inquire  into  the  motive  of  the 
legislature,  and  yet  why  should  a  court  blindly  declare 
that  the  public  health  is  involved  when  all  the  rest  of 
mankind  know  full  well  that  the  control  of  the  plumbing 
business  by  the  board  and  its  licensees  is  the  sole  end 
hi  view?"  Yet  the  court,  while  declaring  the  license 
requirement  for  plumbers  on  this  ground  invalid,  sus- 
tained a  similar  requirement  for  the  barber  trade  (State 
v.  Sharpless,  31  Wash.  191). 

In  view  of  the  absence  of  a  sharp  line  of  demarcation 
between  business  that  should  be  free  and  business  that 
may  be  placed  legitimately  under  qualification  tests,  it 
would  be  almost  impossible  to  make  a  satisfactory  con- 
stitutional issue  upon  the  result  of  legislative  judgment 
fairly  invoked  and  fairly  exercised.  Practically  the 
entire  difficulty  lies  in  the  diversion  of  legislative  power 
to  improper  ends.  No  other  phase  of  legislation  presents 
this  sinister  aspect  as  strongly  as  this  one.  It  is  not 
generally  a  question  of  legislative  good  or  bad  faith,  but 
in  most  cases  it  is  evident  that  the  legislature  has  yielded 
too  readily  to  specious  arguments  advanced  by  interested 
parties  and  has  not  sufficiently  appreciated  the  more 
remote  but  more  important  general  interest  of  the  free- 
dom of  pursuit  of  livelihood.  So  long  and  in  so  far  as 
courts  refuse  or  feel  unable  to  inquire  into  the  motives 
that  have  induced  legislation  the  present  unsatisfactory 
state  of  the  law  must  continue,  but  indications  are  not 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  103 

lacking  that  in  flagrant  cases,  at  least,  the  courts  may  be 
relied  upon  to  judge  motive  by  effect  and  to  refuse 
judicial  sanction  to  legislation  serving  private  ends. 

C.  THE  PROBLEM  OF  CONTESTED  AND  UNMATURED 
STANDARDS 

Unavowed  purposes  of  legislation  are  not  always 
intrinsically  objectionable  or  contrary  to  public  interest. 
Under  systems  of  limited  powers,  such  as  American 
constitutions  have  established,  it  has  happened  now  and 
then  that  a  generally  desired  object  could  be  attained 
only  by  indirection.  Thus  the  United  States  has  occa- 
sionally resorted  to  the  taxing  power  for  the  purpose  of 
accomplishing  objects  not  otherwise  within  the  general 
legislative  power  of  Congress.  In  one  instance  of  this 
kind,  the  suppression  of  the  white  phosphorus  match 
industry  by  a  prohibitive  tax,  there  was  no  pretense  that 
the  law  was  in  any  sense  a  revenue  measure.  Such  in- 
stances of  perversion  of  power  are  regrettable,  and  yet 
we  have  to  take  cognizance  of  the  fact  that  legal  devel- 
opment now  and  then  takes  this  devious  course. 

Hence  it  happens  occasionally  that  objects  are  pursued 
ostensibly  upon  the  familiar  or  well-established  grounds 
of  the  police  power  because  the  real  purpose  sought  to  be 
attained  is  in  advance  of  prevailing  ideas  of  what  the 
state  ought  to  undertake,  though  conceded  to  be  in- 
trinsically desirable,  as,  for  instance,  when  billboards 
are  attacked  upon  the  ground  of  safety,  or  when  an 


104  STANDARDS  OF  AMERICAN  LEGISLATION 

eight-hour  law  for  women  is  advocated  upon  the  ground  of 
public  health.  It  is  quite  natural  that  new  ideals  should 
seek  to  establish  themselves  by  claiming  identity  or  close 
relationship  with  those  that  are  unquestioned  until 
public  opinion  is  won  over  to  the  new  standard.  It  is 
true  that  under  the  theory  upon  which  the  law  relies 
the  conjectural  character  of  the  alleged  danger  involves 
likewise  a  stretch  of  legislative  power,  but  the  controversy 
is  at  least  shifted  from  the  ground  of  principle  to  that  of 
controverted  fact.  A  legislative  policy  can  hardly  be 
worked  out  in  a  satisfactory  manner  if  it  has  to  sail  under 
a  false  flag,  and  sooner  or  later  the  new  standard  will  be 
openly  asserted. 

The  difficulty  also  exists  only  if  legislative  action  is 
in  advance  of  what  may  be  called  the  average  public 
sentiment,  and  it  is  to  be  observed  that  where  public 
opinion  has  been  fully  won  over  to  new  standards  legis- 
lation is  more  likely  to  accept  these  than  to  relax  estab- 
lished standards  in  response  to  growing  public  indulgence. 
One  hundred  years  ago  public  opinion  in  America  saw 
little  evil  in  public  lotteries  and  looked  upon  the  use  of 
intoxicating  liquors  with  considerable  toleration.  On 
the  other  hand,  it  demanded  the  strict  observance  of  the 
Sabbath  and  frowned  upon  such  amusements  as  dancing 
or  the  stage.  The  attitude  is  now  reversed.  But  while 
the  growing  strictness  of  standards  has  been  registered  in 
legislation,  it  is  curious  how  little  the  greater  indulgence 
is  reflected  upon  the  statute  books.  Sunday  laws  and 
municipal  charter  powers  over  amusements  (for  there  is 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  105 

little  direct  state  legislation  upon  the  latter  subject)  are 
left  standing  much  as  they  were  seventy-five  years  ago. 
Massachusetts  (R.L.,  ch.  98,  sec.  4)  permits  Sunday 
licenses  only  for  sacred,  charity,  and  open-air  concerts; 
and  all  amusement  licenses  may  still  be  revoked  at  the 
pleasure  of  the  local  authorities  (ch.  102,  sec.  172),  so 
that  valuable  and  perfectly  legitimate  interests  are  sub- 
jected to  an  arbitrary  and  unregulated  power,  totally  at 
variance  with  the  spirit  of  our  institutions  or  even  with 
the  idea  of  government  by  law.  Such  powers  are  relics 
of  the  past  and  are  continued  upon  the  understanding 
that  they  will  not  be  exercised,  just  as  Sunday  laws  are 
maintained  with  an  expectation  of  non-enforcement. 
There  is  an  obvious  unwillingness  to  abandon  abstract 
moral  standards  once  established,  and  the  evil  effect  of 
disharmony  between  legislation  and  administration  is  not 
sufficiently  appreciated. 

While  there  is  at  present  a  practically  universal 
acquiescence  in  the  greater  strictness  enforced  with  re- 
gard to  such  practices  as  gambling  or  the  use  of  intoxi- 
cating liquors,  there  are  a  number  of  other  standards 
that  are  still  fighting  their  way  into  legislation  and  the 
status  of  most  of  which  is  as  yet  unsettled.  Liability  for 
industrial  accident,  unsightliness,  exploitation  and  oppres- 
sion, unfair  competition,  and  discrimination  are  the 
principal  categories  which  represent  new  types  of  statutory 
restriction  or  requirement.  In  all  of  them  we  find  conduct 
and  duty  measured  by  an  advanced  sense  of  social  obliga- 
tion, and  the  first  inquiry  should  therefore  be  whether 


106  STANDARDS  OF  AMERICAN  LEGISLATION 

any  attempt  has  been  made  to  carry  a  general  concept  of 
social  obligation  into  statute  law. 

i.  The  violation  of  social  obligations:  malice,  wanton- 
ness, and  sharp  practices. — We  may  start  with  the  obvious 
observation  that  not  every  standard  of  conduct  that  is  fit 
to  be  observed  is  also  fit  to  be  enforced.  Acts  establish- 
ing boards  of  health  or  medical  boards  with  disciplinary 
powers  over  medical  practitioners  have  attempted  to  give 
to  the  idea  of  unprofessional  conduct  a  legal  status 
which  some  American  courts  have  rejected  as  too  indefinite 
for  penal  enforcement  (Kennedy  v.  Board  of  Health,  145 
Mich.  241;  Mathews  v.  Murphy,  23  Ky.  L.R.  750; 
Hewitt  v.  Board  of  Medical  Examiners,  148  Cal.  590). 
But  it  is  safe  to  say  that  no  American  legislator  would  be 
willing  to  establish  as  a  statutory  norm  even  for  civil 
purposes  the  notion  of  ungentlemanly  or  antisocial  con- 
duct, or  whatever  might  be  regarded  as  an  equivalent 
term.  Yet  something  approaching  this  has  been  done  by 
the  German  Code  of  1900.  By  its  provisions  the  viola- 
tion of  the  accepted  standards  of  right  conduct  ("  Verstoss 
gegen  die  guten  Sitten")  is  made  not  only  a  ground  of 
nullity  of  legal  acts  (sec.  138),  but  an  actionable  tort 
(sec.  826).  The  effect  of  so  extremely  general  a  provision 
must  be  that  practically  the  law  leaves  it  to  the  courts  to 
develop  a  new  code  of  enforceable  standards,  and  merely 
indicates  by  its  declaration  that  the  specific  criteria  of 
legal  wrong  established  by  the  old  law  are  not  to  be 
treated  as  exclusive,  and  that  an  adjustment  to  advancing 
standards  is  permissible.  Perhaps  this  is  wiser  than  to 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  107 

specify  in  advance  standards  of  conduct  in  connection 
with  as  many  particular  relations  as  possible,  even  if 
such  an  undertaking  were  practicable.  A  provision  of 
this  nature  is  likely  to  be  interpreted  conservatively  and 
may  for  a  time  find  its  chief  application  in  the  nullifica- 
tion of  contracts  which  our  law  likewise  regards  as  con- 
trary to  public  policy.  But  the  Imperial  Court  has  gone 
farther:  it  has  held  the  stipulation  of  an  unconscionable 
attorney's  fee  to  be  void  and  has  allowed  a  recovery  of 
the  amount  paid,  and  in  a  series  of  decisions  it  has  laid 
down  the  rule  that  the  exaction  of  a  pledge  of  honor  to 
secure  the  performance  of  a  pecuniary  obligation  renders 
the  entire  contract  void  as  placing  the  party  thus  pledged 
under  an  unfair  duress  of  conscience.  Such  a  decision 
foreshadows  great  possibilities  of  lifting  moral  to  the 
plane  of  legal  standards  of  conduct. 

The  attitude  of  our  law  is  perhaps  somewhat  indicated 
by  the  treatment  of  malice  when  disconnected  from  any 
specific  tort,  such  as  libel.  It  may  be  stated  as  the  pre- 
dominant view  that  malice  does  not  constitute  an  hide- 
pendent  general  tort.  Even  if  the  case  of  Allen  v.  Flood 
(1898  A.C.  i)  is  read  in  connection  with  the  later  case  of 
Quinn  v.  Leathern  (1901  A.C.  495),  and  if  the  determining 
element  in  holding  the  conduct  in  the  former  case  non- 
actionable  should  be  held  to  be  the  existence  of  an  ulterior 
purpose  of  self-protection  or  of  advancement  of  legitimate 
interests,  the  result  would  merely  be  that  malice  is 
actionable  only  if  it  assumes  the  form  of  unjustifiable 
interference  with  the  relations  of  other  parties.  The 


io8  STANDARDS  OF  AMERICAN  LEGISLATION 

malicious  exercise  of  rights  of  ownership  or  of  contractual 
rights  gives  no  cause  of  action  except  in  one  or  two 
jurisdictions  in  connection  with  what  are  known  as  spite 
fences  (Michigan,  Montana),  whereas  the  German  Code 
expressly  declares  such  exercise  to  be  unlawful  (sec.  226). 

The  only  instance  in  which  there  has  been  occasion 
for  singling  out  a  specific  form  of  malice  for  legislative 
condemnation  has  again  been  that  of  "spite  fences." 
Legislation  dealing  with  that  subject  has  been  apparently 
confined  to  few  jurisdictions  (New  England  states 
California,  Washington)  and  is  of  slight  importance. 

Of  great  sigrnfiranr.e,  however,  is  a  new  ffrparrnre  in 
legislationwhyh  iVoiiriH  in  the  English  Agricultural  Hold- 
ings Act  of  1906.  The  Irish  Land  Act  of  1881  had  es 
lished  the  principle  of  fixity  of  tenure,  according  to  wh 
a  tenant  can  be  deprived  of  his  holding  only  upon 
breach  of  one  of  six  statutory  conditions  laid  down  in  the 
act.  Parliament  was  not  willing  to  go  to  that  length  in 
England.  The  landlord  is  left  master  of  his  property. 
But  the  arbitrary  exercise  of  the  right  of  ownership  is 
qualified  by  giving  the  tenant  a  right  to  compensation  if 
the  landlord  "without  good  and  sufficient  cause  and  for 
reasons  inconsistent  with  good  estate  management" 
terminates  a  tenancy  by  notice  to  quit  or  refuses  to 
grant  a  renewal  (sec.  4).  In.  similar  manner  the  Scotch 
Small  Landholders'  Act  of  1911  (sec.  32)  gives  a  right  to 
renewal  unless  there  is  reasonable  ground  of  objection 
to  the  tenant.  In  these  cases,  then,  opportunity  is  given  to 
the  courts  to  develop  rights  upon  the  basis  of  what  was 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  109 

before  an  obligation  amenable  to  purely  social  and  moral 
standards,  and  a  beginning  is  made  of  carrying  into  the 
law  a  category  of  considerations  totally  different  from 
those  hitherto  regarded  as  characteristic  of  jurisprudence. 
It  would  be  hazardous,  however,  to  generalize  upon  so 
slight  a  basis  of  legislation,  and  it  should  also  be  observed 
that  by  centuries  of  tradition  the  ownership  of  agricul- 
tural land  in  Europe  has  been  a  tenure  practically  qualified 
by  social  obligation,  from  which  the  ownership  of  indus- 
trial capital  and  also  of  city  tenement  property  has  been 
unfortunately  divorced,  until  in  very  recent  tunes  great 
corporations  have  made  a  beginning  in  acknowledging 
similar  duties.  The  obligation  which  the  Agricultural 
Holdings  Act  makes  legally  enforceable  is  therefore  one 
which  is  of  old  standing  in  social  custom. 

2.  Liability  for  industrial  accident. — It  has  been 
pointed  out  before  that  the  German  system  of  workmen's 
insurance  inaugurated  a  new  phase  of  legislative  policy 
by  making  honorable  provision  for  relief  from  suffering 
and  dependence.  Industrial  accident  was  dealt  with, 
like  sickness,  invalidity,  and  old  age,  as  a  social  phenom- 
enon requiring  remedial  treatment,  and  relief  was  given 
by  insurance,  the  cost  of  which  was  in  part  assessed  upon 
the  employer  by  requiring  him  to  contribute  to  the 
invalidity  fund.  This  obligation  of  the  employer,  which 
extends  also  to  sickness  and  old-age  insurance,  is  quite 
divorced  from  any  idea  of  fault.  In  England  and 
in  America  the  normal  form  of  workmen's  accident 
compensation  is  a  liability  placed  upon  the  employer 


no  STANDARDS  OF  AMERICAN  LEGISLATION 

exclusively,  and  thus  appears  in  form  as  an  extension 
of  old  principles  of  liability  for  negligence. 

It  is  well  known  that  to  the  Court  of  Appeals  of  New 
York  the  extension  appeared  so  radical  and  unwarranted 
that  it  declared  the  Act  of  1910,  the  first  of  its  kind 
passed  in  America,  unconstitutional  (Ives  v.  So.  Buffalo 
R.  Co.,  201  N.Y.  271,  1911).  A  few  months  later  the 
Supreme  Court  of  the  state  of  Washington  sustained  an 
act  which  was  an  insurance  law,  though  modeled  upon  a 
type  somewhat  different  from  that  of  Germany  (Davis- 
Smith  Co.  v.  Clausen,  65  Wash.  156).  The  New  York 
decision,  though  it  has  never  commanded  the  assent  of 
the  best  legal  thought  of  the  country,  has  had  the  effect 
of  retarding  compulsory  compensation  legislation  unless 
sanctioned  by  express  constitutional  provisions,  but  in 
the  compromise  form  of  pseudo-elective  laws  the  principle 
of  compensation  has  spread  through  the  United  States  in 
a  manner  almost  unparalleled  in  American  legislative 
history. 

It  is  perhaps  easier  to  criticise  the  decision  of  the  Court 
of  Appeals  of  New  York  than  to  explain  how  the  highest 
court  of  the  greatest  state  of  the  Union  could  have  pos- 
sibly reached  the  conclusion  it  did  by  a  unanimous  vote. 
The  fatal  defect  of  the  position  taken  by  the  court 
probably  was  that  it  looked  upon  the  law  simply  as  a 
measure  of  employer's  liability  with  the  element  of  fault 
eliminated.  In  its  opinion  the  court  paid  no  attention 
to  the  fact  that  workmen's  compensation  legislation  does 
not,  like  the  employer's  liability  legislation  which  pre- 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  ill 

ceded  and  in  part  accompanies  it,  simply  create  a  liability 
fashioned  on  common-law  analogies  and  attended  by  all 
the  chances  of  miscarriage  of  justice  which  made  the 
cause  of  action  for  damages  at  best  a  speculative  affair. 
The  entire  structure  of  carefully  measured  obligations 
and  safeguards  counted  for  nothing  in  the  reasoning  of 
the  court.  Yet  the  essence  of  the  new  law  was  that  it 
did  not  attempt  to  redress  acts  or  omissions,  but  to 
relieve  a  situation,  not,  as  the  court  seemed  to  think, 
upon  an  arbitrary  basis,  but  upon  a  new  principle  which 
perhaps  should  be  designated  as  that  of  social  solidarity. 
The  nexus  of  employer  and  employee  in  a  common 
undertaking,  the  inevitable  risk  of  accident,  and  the 
apportionment  of  loss  through  a  system  of  measured 
benefits  not  aiming  to  give  absolutely  full  indemnity — 
these  are  the  elements  of  solidarity  which  are  entirely 
absent  from  the  common-law  principle  of  liability.  It 
is  obvious  that  the  court  failed  to  comprehend  the  new 
departure  in  legislation  which  it  was  called  upon  to 
judge. 

The  principle  of  social  solidarity  is  by  no  means  con- 
fined to  workmen's  compensation  for  accident.  In 
Germany  it  extends  to  invalidity,  sickness,  and  old  age; 
in  England  to  unemployment.  How  in  each  case  rights 
and  obligations  are  to  be  adjusted,  who  can  equitably  be 
made  contributories,  must  be  a  matter  of  careful  con- 
sideration in  each  case.  But  it  is  safe  to  say  that  the 
only  adequate  form  of  liability  based  on  social  solidarity 
is  a  provision  for  insurance.  And  it  is  interesting  to 


112  STANDARDS  OF  AMERICAN  LEGISLATION 

observe  how  the  logic  of  the  principle  forces  in  a  con- 
stantly increasing  number  of  states  the  adoption  of  insur- 
ance requirements,  so  that  in  course  of  time  undoubtedly 
workmen's  compensation  will  be  enforced  everywhere 
through  some  system  of  compulsory  insurance. 

3.  Disfigurement  or  unsightliness. — Of  the  novel  and 
contested  grounds  of  legislation  none  perhaps  has  had  a 
wider  appeal  than  the  unsightliness  produced  by  outdoor 
advertising.  The  state  of  the  problem  in  this  country 
and  of  the  judicial  decisions  and  suggested  remedies  is  set 
forth  in  a  report  of  a  New  York  City  commission  which 
was  published  hi  August,  1913.  This  commission  pro- 
posed an  amendment  to  the  constitution  of  the  state 
worded  as  follows:  "The  promotion  of  beauty  shall  be 
deemed  a  public  purpose,  and  any  legislative  authority 
having  power  to  promote  the  public  welfare  may  exercise 
such  power  to  promote  beauty  in  any  matter  or  locality 
or  part  thereof,  subject  to  its  jurisdiction."  In  suggesting 
so  wide  a  power  the  commission  opened  up  issues  which 
are  not  at  present  involved  in  any  practical  proposition. 
It  is  true  that  in  European  cities  we  find  municipal 
regulations  which  prescribe  certain  styles  of  building 
with  a  view  to  securing  symmetry  and  artistic  effect  in 
prominent  thoroughfares  or  squares,  and  the  results  of 
such  regulations  appear  very  clearly  in  the  show  streets 
of  Continental  towns.  But  it  is  said  that  the  practice 
of  prescribing  styles  is  declining,  and  in  many  cases  such 
regulations  have  probably  taken  the  form  of  conditions 
imposed  by  the  city  or  state  as  vendor  upon  purchasers 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  113 

of  property  which  had  been  acquired  by  the  public  in 
connection  with  street  widenings  under  the  power  of 
eminent  domain.  In  any  event,  official  dictation  of  this 
kind  has  not  yet  been  seriously  suggested  in  this  country, 
and  this  aspect  of  the  matter  may  therefore  be  dismissed 
as  not  calling  for  present  discussion. 

Perhaps  it  is  also  a  rather  theoretical  question  whether 
outdoor  advertising  is  not  a  matter  over  which  the  public 
may  legitimately  claim  an  absolute  control.  It  might 
well  be  urged  that  the  public  at  large  should  have  a  right 
to  determine  whether  its  attention  is  to  be  practically 
compelled  in  undesired  ways,  just  as  the  freedom  of 
speech  does  not  mean  the  liberty  to  address  an  individual 
against  his  will.  However,  this  aspect  of  the  matter  has 
not  been  put  forward  as  a  basis  of  legislation. 

It  is  safer  to  discuss  the  problem  upon  the  basis  of 
actual  or  proposed  regulations.  Several  acts  have  been 
passed  in  Germany  and  England  since  the  beginning  of 
this  century  which  deserve  consideration.  A  Prussian 
act  of  1902  authorizes  the  prohibition  outside  of  cities 
and  villages  of  billboards  or  other  advertising  signs  which 
disfigure  the  appearance  of  a  district  distinguished  by 
beauty.  Another  act  of  1907  directs  the  denial  of 
building  permits  for  structures  which  will  grossly  dis- 
figure a  street  or  place  or  the  general  aspect  of  a  locality, 
and  also  confers  power  on  municipal  authorities,  in  con- 
nection with  places  of  historic  or  aesthetic  interest,  to 
reject  plans  for  building  which  impair  the  character  of 
the  scene,  and  to  deny  licenses  for  placing  advertising 


114  STANDARDS  OF  AMERICAN  LEGISLATION 

signs;  it  also  permits  special  building  regulations  for 
districts  with  detached  houses,  summer  resorts,  and 
"show"  streets.  An  English  act  of  1907  permits  local 
by-laws  forbidding  billboards  exceeding  twelve  feet  in 
height,  and  controlling  advertisements  calculated  to 
affect  injuriously  the  amenities  of  a  public  park  or  pleas- 
ure promenade,  or  to  disfigure  the  natural  beauty  of  a 
landscape. 

It  will  be  noticed  that  these  acts  emphasize  the  idea  of 
disfigurement:  the  English  act  meddles  with  advertising 
only  when  it  impairs  the  amenity  of  public  pleasure 
grounds,  and  the  Prussian  act  permits  regulations  in  the 
nature  of  an  aesthetic  control  only  where  a  place  is 
already,  as  it  were,  dedicated  to  beauty.  The  term 
"amenity"  which  is  used  in  the  English  act  recurs  in 
broader  application  in  the  Housing  Act  of  1909,  in  which 
(sec.  54)  sanitary  conditions,  amenity,  and  convenience 
are  mentioned  together  without  any  difference  of  power. 
There  has  been  neither  judicial  interpretation  nor,  so  far 
as  ascertainable,  any  other  authoritative  discussion  of 
the  term  "amenity,"  and  it  is  perhaps  futile  to  speculate 
how  far  the  concept  can  be  carried.  Its  introduction 
into  statutory  language,  however,  indicates  at  least  the 
possibility  of  developments  in  a  new  direction. 

American  legislation  has  been  more  commonly  in 
form  of  local  ordinances  than  of  statutes,  but  courts 
have  made  no  distinction  upon  that  basis.  As  a  rule 
the  attempted  restrictions  have  been  directed  against 
billboards,  sky  signs,  and  similar  structures  expressly 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  115 

erected  for  advertisements  and  only  in  very  few  cases 
against  signs  painted  or  posted  on  house  walls  or  fences 
(Com.  v.  Bost.  Adv.  Co.,  188  Mass.  348,  1905;  People  v. 
Greene,  85  App.  Div.  N.Y.  400).  Except  in  these  last 
cases  the  regulations  have  been  framed  with  a  view  to 
justification  on  other  than  purely  aesthetic  grounds,  such 
as  measures  designed  against  fire  or  wind  hazards,  or 
against  nuisances  in  the  commonly  accepted  sense  of  the 
term.  Where  they  have  been  sustained  by  the  courts, 
these  latter  grounds  were  chiefly  or  altogether  relied 
upon,  and,  on  the  other  hand,  where  it  appeared  that  the 
use  for  advertising  rather  than  the  structure  itself  was 
the  objective  point  the  regulation  was  held  invalid  (People 
v.  Murphy,  195  N.Y.  126;  Chicago  v.  Gunning  System, 
214  111.  628).  Cases  involving  the  use  of  streets  and 
highways  stand  upon  a  different  basis  (Fifth  Ave.  Stage 
Coach  case,  194  N.Y.  19,  221  U.S.  467).  Aside  from  a 
few  dicta  the  very  decided  judicial  view  in  this  country  is 
that  the  police  power  of  the  state  cannot  be  exercised  on 
aesthetic  grounds  (see  also  Hatter  Sign  Works  v.  Physical 
Culture  School,  249  111.  436,  1911). 

While  it  must  be  conceded  that  the  present  trend  of 
authority  is  opposed  to  even  such  legislation  as  has  been 
enacted  in  Prussia,  yet  it  is  perhaps  unfortunate  that  the 
issue  has  been  generally  stated  too  broadly,  and  particu- 
larly the  proposition  made  in  New  York  to  place  by 
constitutional  amendment  beauty  on  a  par  with  morals 
and  safety  is  to  be  deprecated.  Apart  from  "considera- 
tions of  abstract  power  it  is  undesirable  to  force  by  law 


Il6  STANDARDS  OF  AMERICAN  LEGISLATION 

upon  the  community  standards  of  taste  which  a  repre- 
sentative legislative  body  may  happen  to  approve  of, 
and  compulsion  with  that  end  in  view  would  be  justly 
resented  as  inconsistent  with  a  traditional  spirit  of 
individualism.  But  it  is  a  different  question  whether 
the  state  may  not  protect  the  works  of  nature  or  the 
achievements  of  art  or  the  associations  of  history  from 
being  wilfully  marred.  In  other  words,  emphasis  should 
be  laid  upon  the  character  of  the  place  as  having  an 
established  claim  to  consideration  and  upon  the  idea  of 
disfigurement  as  distinguished  from  the  falling  short  of 
some  standard  of  beauty.  It  is  quite  possible  that  the 
approval  of  American  jcourts  may  yet  be  won  for  regu- 
lations placed  upon  that  basis  if  the  measures  prescribed 
observe  a  proper  degree  of  discrimination. 

4.  Unfair  competition.  —  The  Trade  Commission  Act 
of  September__2£,  Tf?T4,  has  ftiygri  thp  concept  of  unfair 
competitionT  previously  "^  only  in  somewhat  loose 
fashion  to  indicate  various  practices  fallin^Jbelcjw  tVip 
average  standard  of  business  ethics,  a  legal  status  in 
American  law,  but  has  deliberately  refrained  from  de- 
^  Unless  Congress  will  further  legislate 


upon  the  subject,  its  meaning  will  depend  upon  adminis- 
trative and  judicial  rulings,  and  past  experience  may  aid 
us  in  forecasting  future  development. 

There  is  a  German  act  of  1896  dealing  with  what  is 

generally  regarded  as  the  German  equivalent  of  unfair 

• 

1  See  Yale  Law  Journal,  XXV,  20,  for  review  of  opinions  expressed  during 
debate  in  Congress. 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  117 

competition;  but  the  German  term  unlauter  has  a  conno- 
tation of  uncleanness,  which  makes  it  stronger  than  the 
"unfair"  of  our  language.  Accordingly  the  practices 
forbidden  lie  within  the  narrow  compass  of  actual  decep- 
tion, misleading  designations,  and  the  betrayal  of  trade 
secrets  learned  in  the  course  of  employment.1 

American  legislation  has  in  the  past  confined  itself  in 
the  main  to  two  forms  of  unfair  competition,  each  of 
which  had  risen  to  the  status  of  a  distinct  business:  the 
scalping  of  railroad  tickets  apH  ty  iggnp  of  f^^jr.g 
stamps.2  Since  the  established  policy  of  railroad-rate 
regulation  negatives  the  principle  of  free  competition  in 
any  event,  an  attempt  to  regulate  the  sale  of  transpor- 
tation in  such  a  way  as  to  check  ruinous  or  underhand 
competition  can  hardly  be  held  illegitimate.  Where  the 
legislation  has  been  attacked  successfully  (157  N.Y.  116; 
71  N.Y.S.  654,  168  N.Y.  671),  it  has  been  on  the  ground 
of  the  supposed  monopolistic  features  of  the  regulation; 
but  in  the  majority  of  states  (Illinois,  Indiana,  Minnesota, 
Pennsylvania)  the  legislation  which  confines  the  sale  of 
railroad  tickets  to  railroad  companies  or  their  agents  has 
been  sustained.3 

On  the  other  hand,  the  attempt  to  suppress  the 
trading-stamp  business  by  forbidding  the  issue  of  such 

1 A  recent  American  treatise  (E.  S.  Rogers,  Goodwill,  Trademarks  and 
Unfair  Trading)  likewise  discusses  under  the  head  of  unfair  competition  in 
the  main  deceptive  practices  in  using  names,  in  advertising,  etc. 

*  I  leave  aside  fire  and  bankrupt  sales  which  are  aimed  at  fraudulent 
practices. 

JFreund,  Police  Power,  sees.  291,  673. 


Il8  STANDARDS  OF  AMERICAN  LEGISLATION 

stamps  in  connection  with  the  sale  of  merchandise  has 
generally  been  held  to  be  an  unjustifiable  exercise  of 
legislative  power.1  The  courts  were  unable  to  discover 
in  the  device  an  element  of  fraud;  and  the  majority  of 
courts  also  thought  that  at  least  if  the  element  of  uncer- 
tainty was  eliminated  there  was  nothing  in  the  nature  of 
an  appeal  to  the  gambling  spirit  (95  Md.  133;  165  Mass. 
146).  That  there  was  an  appeal  to  other  uneconomic 
instincts  and  fallacies  which  lowered  the  level  of  standards 
of  trading  was  apparently  not  sufficient  to  warrant  the 
outlawing  of  a  practice  which  could  not  be  brought  under 
any  of  the  traditional  categories  of  illegality.  If  this 
was  the  judicial  attitude  toward  express  legislation,  it 
may  be  inferred  that  the  practice  would  not  be  held  to 
be  affected  by  a  mere  general  condemnation  of  unfair 
competition. 

It  is  very  likely  that  under  the  Trade  Commission  Act 
an  attack  will  be  made  upon  the  practice  of  price-cutting, 
and  a  separate  bill  (the  so-called  Stevens  Bill)  was  intro- 
duced in  the  Sixty-third  Congress  to  permit  under 
specified  conditions  an  owner  to  prescribe  the  sole  uniform 
price  at  which  the  articles  manufactured  or  put  on  the 
market  by  him  shall  be  resold  to  dealers  or  to  the  pur- 
chasing public.  Legislation  of  this  kind  has  a  safer 
basis  than  ordinary  restrictive  regulation,  for  the  restraint 
upon  the  right  of  the  subvendor  is  not  imposed  by  the 
law,  but  attaches  to  the  property  by  virtue  of  a  stipu- 
lation made  by  the  original  owner,  the  statute  merely 

1  Freund,  Police  Power,  sec.  293.    See,  however,  240  U.S.  342  and  369. 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  119 

lifting  a  common-law  disability  in  connection  with  the 
disposition  of  property.  Apart  from  legislation,  the 
question  would  be  whether  what  is  ordinarily  the  exercise 
of  a  common-law  right  can  be  invested  by  the  circum- 
stances of  the  case  with  a  tortious  aspect.  In  certain 
cases  the  practice  of  price-cutting  may  serve  the  ulterior 
purpose  of  establishing  a  monopoly,  but  a  prohibition 
confined  to  these  cases  would  not  afford  adequate  relief. 
In  a  somewhat  exceptional  case  (163  Iowa  106,  143  N.W. 
482)  the  advertisement  of  a  cut  price  was  even  held  to  be 
a  malicious  attempt  to  injure  and  an  actionable  tort. 
This  decision  likewise  can  hardly  be  made  to  cover  the 
ordinary  cases.  The  effort  has  therefore  recently  been 
made  to  prove  that  what  is  designated  as  predatory  price- 
cutting  is  an  act  in  the  nature  of  a  direct  and  actionable 
injury.  The  manufacturer  of  an  article  by  extensive 
advertising  and  by  long-continued  satisfactory  service  of 
the  public  associates  in  the  minds  of  the  public  with  the 
known  and  intrinsic  qualities  of  the  article  a  certain  value 
expressed  in  a  definite  price.  This  is  an  achievement 
which  constitutes  something  in  the  nature  of  a  good-will, 
and  at  any  rate  is  a  vested  interest.  The  person  who 
advertises  the  article  at  a  lower  than  the  standard  price 
as  a  "leader"  creates  the  false  impression  that  he  gener- 
ally gives  standard  value  at  less  than  standard  prices, 
while  if  he  wishes  to  make  profits  he  must  recoup  on 
articles  not  standardized  in  value  or  price.  In  order  to 
deceive  the  public,  he  robs  the  manufacturer  of  his  vested 
interest,  for  the  public  is  led  to  believe  that  the  standard 


120  STANDARDS  OF  AMERICAN  LEGISLATION 

price  is  excessive;  the  producer's  good-will  is  taken  from 
him  by  fraud.1 

This  is  a  skilful  and  plausible  presentation  of  a 
grievance  which  makes  a  strong  appeal  to  equity.  Its 
interest  lies  in  the  care  with  which  the  economic  nature 
and  effect  of  a  practice  is  analyzed,  which  upon  a  super- 
ficial view  appears  to  be  a  mere  exercise  of  the  right  of 
ownership.  One  cannot  help  feeling  that  if  the  trading- 
stamp  business  were  dissected  with  equal  keenness  it 
might  likewise  appear  less  legitimate  than  our  courts 
have  held  it  to  be.  If  unfair-competition  legislation — 
and  the  same  is  true  of  other  advanced  standards — is  to 
be  placed  upon  a  safe  basis,  the  ground  must  be  prepared 
by  an  exhaustive  and  scientific  analysis  of  the  elements 
entering  into  the  situation  that  will  impress  and  convince 
the  public  mind  and  the  courts. 

5.  Oppression  and  exploitation. — There  is  no  common- 
law  wrong  corresponding  to  these  terms,  and  both  the 
right  of  property  and  the  freedom  of  contract  imply  the 
legality  of  hard  and  even  unconscionable  acts  and 
bargains.  Usury  is  a  canon-law  and  not  a  common-law 
concept,  and  the  condemnation  of  usury  means  that  the 
lending  out  of  money  at  interest  is  intrinsically  wrongful 
— an  extreme  and  fallacious  application  of  the  idea  of 
the  exploitation  of  economic  power,  which,  even  while 
theoretically  acknowledged,  had  to  be  evaded  in  many 
ways,  and  which  is  now  universally  dropped.  The  usury 
laws  modeled  upon  the  statute  of  Henry  VIII  in  effect 

*E.  S.  Rogers,  "Predatory  Price  Cutting,"  27  Harvard  Law  Review  139. 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  1 21 

license  and  limit  the  taking  of  interest;  the  limitation  is 
by  a  fixed  rate  which  operates  irrespective  of  particular 
circumstances.  It  is  not  confined  to,  although  it  tends  to 
check,  unconscionable  practices,  and  it  often  fails  to 
meet  evasive  devices.  This  type  of  usury  law,  common 
in  the  United  States,  was  abolished  in  England  in  1854 
and  the  English  example  was  followed  in  many  other 
European  states.  But  Germany  in  1880  penalized  the 
taking  of  excessive  interest  on  loans  under  circumstances 
indicating  exploitation,  and  in  1893  further  generalized 
the  penalties  of  the  law  of  1880  by  extending  them 
to  any  kind  of  transaction  in  which  one  party  exploits 
the  necessity,  the  improvidence,  or  the  inexperience  of 
another  by  stipulating  or  procuring  for  himself  benefits 
which  exceed  the  value  of  the  consideration  given  to 
such  an  extent  that,  according  to  the  circumstances  of 
the  case,  there  is  a  striking  disproportion  to  the  other 
party's  disadvantage.  The  English  Money  Lender's 
Act  of  1900  is  confined  to  loans  of  money  and  affords 
relief  against  excessive  interest  or  otherwise  harsh  and 
unconscionable  terms.  It  has  been  suggested  that  the 
terms  of  the  German  law  are  wide  enough  to  reach  the 
evil  of  starvation  wages,  but,  without  going  so  far,  it  is 
clear  that  gross  exploitation  has  been  made  a  distinct 
offense. 

From  the  socialistic  point  of  view  our  entire  industrial 
system  might  be  made  to  appear  as  one  of  unconscionable 
exploitation,  but  it  is  obvious  that  such  a  view  would  be 
of  no  value  for  practical  legislative  or  judicial  purposes. 


122  STANDARDS  OF  AMERICAN  LEGISLATION 

Given  our  capitalistic  system  as  it  is,  exploitation  or 
oppression  as  a  subject  of  legislation  must  have  reference 
to  things  not  implied  in  the  prevailing  economic  con- 
stitution. 

All  labor  legislation  that  is  not  concerned  with  health, 
safety,  and  morals  aims  to  check  capitalistic  exploitation, 
and  judicial  decisions  reflect  the  difficulty  of  separating 
legitimate  from  illegitimate  practices.  The  legislation 
for  children  is  placed  upon  a  clear  and  distinct  title  of 
protective  power,  and  laws  limiting  hours  of  labor, 
particularly  where  they  apply  to  women,  can  be  sup- 
ported as  health  and  safety  laws.  But  measures  relating 
to  the  payment  of  wages  must  justify  themselves  upon 
wider  grounds,  and  in  studying  advancing  standards, 
truck  or  store-order  and  weekly-payment  acts  are  there- 
fore of  particular  interest.  It  is  hi  connection  with  these 
laws  that  the  doctrine  of  constitutional  freedom  of  con- 
tract has  grown  up  and  has  been  most  strongly  asserted. 

The  keynote  was  struck  by  the  brief  and  pointed 
denunciation  of  a  store-order  act  which  is  found  in  the 
first  case  decided  by  the  Supreme  Court  of  Pennsylvania 
(Godcharles  v.  Wigeman,  113  Pa.  St.  431).  The  act  was 
declared  to  be  an  infringement  alike  of  the  right  of  the 
employer  and  of  the  employee: 

More  than  this,  it  is  an  insulting  attempt  to  put  the  laborer 
under  a  legislative  tutelage  which  is  not  only  degrading  to  his 
manhood,  but  subversive  of  his  rights  as  a  citizen  of  the  United 
States.  He  may  sell  his  labor  for  what  he  thinks  best,  whether 
money  or  goods,  just  as  his  employer  may  sell  his  iron  or  coal, 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  123 

and  any  and  every  law  that  proposes  to  prevent  him  from  so 
doing  is  an  infringement  of  his  constitutional  privileges  and  con- 
sequently vicious  and  void. 

The  cases  in  Illinois  involving  coal-weighing,  store- 
order,  and  weekly-payment  legislation  were  tess  pro- 
nounced (Millett  v.  People,  117  111.  294;  Frorer  v.  People, 
141  111.  171;  Braceville  Coal  Co.  v.  People,  147  111.  66; 
Ramsey  v.  People,  142  111.  380;  Harding  v.  People,  160 
111.  459).  In  annulling  the  statutes  in  question  the 
elements  of  discrimination  which  the  court  found  in 
them  were  chiefly  relied  upon.  The  insistence  upon  the 
freedom  of  contract,  however,  which  was  at  first  subordi- 
nate, was  gradually  more  emphasized,  and  finally  the 
supreme  court  declared  it  to  have  been  a  controlling 
feature  of  those  decisions  (Vogel  v.  Pekoe,  157  111.  339). 
West  Virginia  and  Indiana  have  been  uncertain  in  their 
position  and  their  decisions  are  difficult  to  reconcile  with 
each  other.  In  both  states  the  later  rulings  are  favorable 
to  the  legislation,  but  with  qualifications  (State  v.  Fire 
Brick  Co.,  33  W.Va.  188;  Peel  Splint  Coal  Co.  v.  State, 
36  W.Va.  802;  Hancock  v.  Yaden,  121  Ind.  366;  Republic 
Iron  6°  Steel  Co.  v.  State,  160  Ind.  379;  Seeleyville  Coal 
&•  Mining  Co.  v.  McGlosson,  166  Ind.  561).  Missouri  in 
1893  condemned  a  store-order  act,  likewise  relying  mainly 
upon  unjustifiable  discrimination  (State  v.  Loomis,  115 
Mo.  307).  But  it  took  the  broader  ground  of  consti- 
tutional liberty  when  the  legislation  was  made  general 
and  was  again  contested  (State  v.  Missouri  Tie  &*  Timber 
Co.,  181  Mo.  536).  Decisions  condemning  the  attempt  to 


124  STANDARDS  OF  AMERICAN  LEGISLATION 

control  the  method  or  time  of  payment  of  wages  are 
found,  moreover,  in  Ohio  (Re  Preston,  63  Ohio  St.  428), 
Kansas  (State  v.  Haun,  61  Kans.  146),  and  Texas  (Jordan 
v.  State,  51  Tex.  Cr.  531).  Against  these  must  be  set  the 
authority  of  the  United  States  Supreme  Court  (Knoxville 
Iron  Co.  v.  Harbison,  183  U.S.  13  [affirming  103  Tenn. 
421];  McLean  v.  Arkansas,  211  U.S.  539),  which  in  two 
decisions  has  strongly  asserted  the  legislative  power  to 
protect  the  workman  against  methods  of  paying  or 
computing  his  wages  which  may  operate  to  his  dis- 
advantage. The  same  position  is  taken  by  a  number  of 
state  courts  (Opinions  of  Justices  in  Massachusetts,  163 
Mass.  589;  Colorado,  23  Col.  504;  South  Carolina,  47 
S.E.  695;  Washington,  88  Pac.  212;  Vermont,  64  Atl. 
1091).  There  are  decisions  sustaining  the  legislation  with 
reference  to  corporations  in  Arkansas,  Maryland,  and 
Rhode  Island.  But  it  should  be  observed  that  Missouri 
maintained  its  ground  after  the  decision  of  the  Supreme 
Court  of  the  United  States  had  been  rendered.  We  are 
not  now  concerned  with  preponderance  of  authority, 
but  with  the  fact  that  so  considerable  a  number  of 
decisions  have  been  adverse  to  this  type  of  legislation. 

It  sounds  almost  like  irony  to  attack  store-order  and 
wage-payment  acts  in  the  name  of  freedom  of  contract. 
To  do  so  we  have  to  regard  the  liberty  to  compete  for 
employment  upon  unfavorable  terms  as  a  valuable  right. 

What,  then,  is  the  real  basis  of  the  adverse  decisions  ? 
Surely  it  cannot  be  that  the  courts  meant  to  deny  the 
possibility  of  legislative  relief  against  gross  exploitation; 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  12$ 

the  explanation  must  be  that  they  did  not  look  upon  the 
legislation  from  that  point  of  view.  When  we  inquire 
for  information  concerning  the  conditions  against  which 
this  legislation  was  directed,  we  are  struck  by  the  scarcity 
of  data.  The  report  of  the  Industrial  Commission  of 
1900  has  something  to  say  about  the  grievances  in  the 
Colorado  mining  industry,  and  from  an  official  state 
report  of  1890  we  learn  something  of  the  conditions  in 
the  same  industry  in  Illinois.  There  may  be  other 
similar  accounts,  but  they  are  not  readily  accessible,  and 
it  does  not  appear  that  they  were  brought  to  the  attention 
of  the  courts.  Under  these  circumstances  it  is  difficult 
to  pass  final  judgment  on  the  character  and  the  effect  of 
the  practices  which  the  statutes  sought  to  abolish.  The 
antiquity  and  universality  of  store-order  or  truck  legis- 
lation, which  in  England  reaches  back  to  the  middle  of 
the  fifteenth  century,  indicates  indeed  the  existence  of 
grievances  and  abuses  so  notorious  that  the  courts  ought 
to  have  taken  judicial  notice  of  them,  and  this  position 
was  strongly  pressed  in  a  dissenting  opinion  delivered  in 
the  first  Missouri  case.  But  with  reference  to  the 
requirement  of  the  weekly  or  bi-weekly  payment  of 
wages  it  must  be  observed  that  the  customary  practice  of 
longer  intervals  between  payments  not  only  cannot  in  any 
proper  sense  be  termed  an  abuse  or  form  of  oppression, 
but  that  the  new  requirement,  where  sustained  by  the 
courts,  occasionally  worked  such  hardship  upon  employers 
that  its  rigorous  enforcement  proved  at  first  impracticable.1 

•  *  New  York  Factory  Inspector's  Report,  1890,  pp.  102-3 


126  STANDARDS  OF  AMERICAN  LEGISLATION 

If  it  be  conceded  or  assumed  that  it  was  possible  to 
look  upon  the  alleged  grievances  as  a  matter  of  fair  con- 
troversy, the  conflict  of  decisions  turns  upon  a  very 
important  issue,  namely,  whether  at  the  discretion  of  the 
legislature  any  arrangement  between  employer  and 
employee  involving  some  disadvantage  to  the  latter  may 
be  treated  as  a  form  of  oppression  amenable  to  com- 
pulsory relief.  It  is  easy  to  gather  from  the  tone  of  some 
of  the  decisions  that  a  number  of  courts  thought  it 
important  that  an  emphatic  denial  should  be  given  to 
this  question.  On  the  other  hand,  the  courts  which 
sustain  the  statutes  do  so  in  a  half-hearted  way,  without 
committing  themselves  to  more  than  the  particular 
provisions  before  them.  They  do  not  repudiate  the 
principle  of  freedom  and  do  not  indicate,  except  in  the 
vaguest  terms,  the  basis  upon  which  it  may  be  impaired. 
The  failure  to  assign  any  limits  to  the  legislative  power 
of  control  may  serve  to  explain  the  uncompromising 
stand  taken  against  its  recognition  at  the  outset  in  so 
many  jurisdictions. 

The  minimum-wage  acts  are  the  latest  step  in  wage- 
payment  legislation.  While  sustained  by  one  court,1 
they  have  not  yet  been  passed  upon  by  the  federal 
Supreme  Court.  They  are  confined  to  women,  and  this 
fact  may  perhaps  be  taken  to  indicate  an  entirely  new 
departure  in  legislative  policy.  But  they  are  so  framed 
that  it  may  be  claimed  that  they  are  sustainable  as 
legislation  against  exploitation  and  perhaps  even  for  the 

1  Steltler  v.  O'Hara,  69  Ore.  519,  1914. 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  127 

protection  of  health  and  morals;  at  least  there  are 
recitals  to  that  effect  in  some  of  the  laws.  The  principle 
upon  which  the  legislation  is  actually  based  is  that  of  the 
living  wage,  which  is  variously  denned,  but  in  such  a  way 
as  not  to  revolutionize  the  existing  standards,  and  par- 
ticularly (since  the  legislation  is  confined  to  women  who 
are  presumably  not  heads  of  households)  without  refer- 
ence to  the  maintenance  of  a  family.  Minimum-wage 
acts  also  differ  radically  from  other  wage-payment  acts 
in  the  method  of  their  operation.  Except  in  one  state 
the  wage  is  not  fixed  by  the  law,  but  by  commissions 
acting  under  the  law.  This  means  that  both  the  state 
of  facts  calling  for  relief  and  the  measure  of  relief  will  in 
each  case  be  determined  upon  investigation  involving 
hearings  and  decisions.  In  fact,  this  type  of  legislation 
itself  was  in  the  first  instance  founded  upon  the  careful 
investigation  and  report  of  a  legislative  commission  of 
inquiry.  One  of  the  chief  objections  to  the  store-order 
and  weekly-payment  acts  is  thus  avoided:  it  is  not  as 
easy  to  maintain  that  the  legislation  is  simply  an  exercise 
of  arbitrary  and  unwarranted  control.  A  case  is  made 
hi  support  of  the  position  that  there  is,  if  not  exploitation 
and  oppression,  at  least  a  situation  calling  for  redress  or 
relief.  Considering  that  no  standard  has  as  yet  been 
discovered  for  fixing  the  just  relation  between  service  and 
return,  exploitation  and  oppression  shade  quite  insensibly 
into  economic  disparity,  and  if  there  were  no  further 
check,  legislation  based  upon  these  heads  would  represent 
no  tangible  or  controllable  principle.  But  that  principle 


128  STANDARDS  OF  AMERICAN  LEGISLATION 

is  found  if  it  is  once  established  that  some  practice,  even 
assuming  the  inevitableness  of  social  injustice  in  a  general 
way,  has  become  an  untenable  grievance  or  carries  with 
it  evils  disproportionate  to  the  sacrifices  that  would  be 
demanded  in  order  to  relieve  it.  Such  a  practice  may  be 
characterized  as  subnormal  or  antisocial;  the  determin- 
ing factor  in  justifying  legislation  is  that  both  defect  and 
remedy  have  some  basis  of  evidence  and  have  ceased  to 
be  a  matter  of  mere  surmise  and  allegation.1 

6.  Discrimination. — Unjustifiable  or  arbitrary  dis- 
crimination on  the  part  of  the  lawmaking  power  or  of 
other  organs  of  the  state  violates  the  principle  of  the  equal 
protection  of  the  law  which  is  incorporated  in  the  Four- 
teenth Amendment;  but  discrimination,  however  arbi- 
trary, when  proceeding  from  individuals  or  corporations, 
is  not  within  the  purview  of  the  fundamental  clauses  of 
the  federal  constitution  (Civil  Rights  cases,  109  U.S.  i), 
and  is  not  either  a  common-law  offense  or  a  common-law 
tort,  and  is  dealt  with  by  state  legislation  only  in  par- 
ticular relations.  A  conspicuous  legislative  policy  against 
one  type  of  discrimination  has  found  expression  in  the 
civil-rights  acts  of  several  northern  states  which  have 
sought  (in  the  nature  of  things,  rather  unsuccessfully)  to 
secure  to  the  members  of  the  colored  race  the  equal 
enjoyment  of  the  accommodations  of  railroads,  theaters, 
inns,  and  restaurants — a  policy  offset  by  the  laws  of 
southern  states  enforcing  (with  considerably  greater 
success)  separation  hi  schools,  on  railroads,  and  above 

1  As  to  broader  grounds  of  labor  legislation,  see  chapter  i. 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  129 

all  in  marriage.  The  contention  that  a  perfectly  recip- 
rocal segregation  has  no  element  of  discrimination  in  it 
would  have  greater  force  if  there  could  be  perfect  reci- 
procity in  such  matters ;  however,  the  race  problem  is  so 
peculiar  that  statutory  attempts  at  its  solution  are  likely 
to  strain  principles  of  legislation  to  the  utmost. 

Apart  from  race  relations,  discrimination  has  engaged 
legislative  attention  in  connection  with  railroads  and, 
more  recently,  with  trusts  and  monopolies.  When  we 
speak  of  the  common  carrier's  common-law  duty  of 
equal  service,  we  do  not  necessarily  mean  more  than  that 
he  may  not  refuse  to  anyone  willing  to  pay  for  it  trans- 
portation within  the  scope  of  his  business,  according 
to  his  available  resources,  and  on  reasonable  terms. 
Whether  he  may,  while  performing  that  obligation, 
discriminate  by  granting  to  favored  parties  special  rates 
or  accommodations  is  a  question  that  has  been  much 
controverted.  The  English  House  of  Lords  has  held 
that  such  favors  are  not  forbidden  by  the  common  law, 
while  the  Supreme  Court  of  the  United  States  has 
intimated  the  contrary  (Great  Western  R.  Co.  v.  Sutton, 
L.R.  4  H.L.  226,  237;  Western  Union  Tel.  Co.  v.  Call. 
Pub.  Co.,  181  U.S.  92). 

That  in  the  case  of  railroads  a  right  to  grant  favors 
involves  possibilities  of  great  abuse,  and  an  undesirable 
power  of  controlling  industrial  developments,  was  recog- 
nized at  an  early  period.  In  England  it  became  cus- 
tomary to  insert  in  the  special  acts  incorporating  rail- 
road companies  clauses  forbidding  them  to  discriminate 


130  STANDARDS  OF  AMERICAN  LEGISLATION 

in  their  terms,  and  these  clauses  were  made  part  of 
the  general  railroad  acts  of  1845  and  1854,  from  which 
they  were  later  on  taken  into  the  federal  Interstate 
Commerce  Act  of  1887.  In  Prussia,  likewise,  the  earliest 
railroad  act,  that  of  1838,  prohibited  discrimination  for  or 
against  parties  in  interest. 

In  America,  railroad  legislation  was  slower  to  enforce 
the  general  principle  of  non-discrimination.  It  was 
ignored  by  the  general  railroad  act  of  New  York  of  1848, 
the  first  of  its  kind,  and  was  not  explicitly  laid  down  in 
that  state  until  the  Public  Service  Commission  Law  of 
1907.  Massachusetts  formulated  the  principle  in  some- 
what ambiguous  form  in  1869  (ch.  252,  leaving  it  doubtful 
whether  the  duty  was  not  confined  to  freight  tendered 
by  other  carriers;  the  revision  of  1882  removed  the 
doubt) ;  in  1870  it  appeared  in  the  constitution  of  Illinois, 
in  1873  in  the  constitution  of  Pennsylvania;  as  before 
stated,  Congress  adopted  it  for  interstate  commerce  in 
1887,  and  specifically  prohibited  a  very  considerable 
number  of  discriminating  practices  or  colorable  evasions 
of  the  principle  by  the  Rate  Act  of  1906.  At  present  the 
public  service  commissions  of  various  states  are  vested 
with  comprehensive  powers  to  deal  with  discriminatory 
practices. 

Discrimination  has  a  double  connection  with  the 
economic  problem  of  monopoly.  A  monopoly  even  if 
legalized  is  tolerable  only  upon  condition  of  equal 
service  to  all  and  no  favors;  this  has  become  almost  a 
commonplace  of  the  law  of  privileged  utilities.  But 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  131 

discrimination  is  also  one  of  the  practices  upon  which 
monopolies  grow  up  and  develop.  The  case  in  which 
the  Supreme  Court  of  Ohio  laid  down  the  rule  that  dis- 
crimination on  the  part  of  a  railroad  company  was 
contrary  to  the  common  law  (Scofield  v.  R.  Co.,  43  Ohio 
St.  571,  1885)  was  a  case  in  which  the  favored  shipper 
was  the  Standard  Oil  Company.  While  here  a  monopoly 
was  built  up  by  seeking  and  receiving  preferential  treat- 
ment, it  is  also  possible  to  crush  competition  by  granting 
favorable  terms  where  the  competition  is  to  be  met, 
recouping  for  the  loss  elsewhere  or  after  the  competitor 
has  been  removed. 

Recent  economic  history  has  shown  that  this  latter 
phase  of  discrimination  is  by  no  means  a  practice  con- 
fined to  common  carriers;  while,  however,  its  prohibition 
is  a  relatively  simple  matter  when  applied  to  legalized 
monopolies,  it  is  an  undertaking  as  yet  practically  untried 
to  compel  equal  treatment  when  there  is  no  obligation  to 
serve  in  the  first  instance.  The  constitution  of  Oklahoma 
(art.  9,  sec.  46)  contains  a  curiously  lame  attempt  to  deal 
with  the  matter.  The  provision  is  that  no  person 
engaged  in  the  production  or  sale  of  any  commodity  of 
general  use  shall  for  the  purpose  of  destroying  compe- 
tition hi  trade  discriminate  between  different  persons, 
associations,  or  corporations,  or  sections,  communities,  or 
cities,  by  selling  the  commodity  at  a  lower  rate  in  one 
section,  community,  or  city  than,  another,  after  making 
due  allowance  for  difference  hi  grade  and  quality  and  in 
actual  cost  of  transportation.  It  will  be  noted  that  the 


132  STANDARDS  OF  AMERICAN  LEGISLATION 

specification  of  the  latter  part  of  the  clause  virtually 
nullifies  the  reference  in  the  first  part  to  persons  in 
addition  to  localities,  and  leaves  only  a  prohibition  of 
local  discrimination.  The  so-called  Clayton  Anti-trust 
Act  of  1914  covers  personal  as  well  as  local  discrimination, 
but  in  its  qualifying  clauses  it  goes  beyond  the  Oklahoma 
provision,  for  it  saves,  in  addition  to  differences  based  on 
the  cost  of  marketing  the  product,  the  right  to  discrimi- 
nate in  order  to  meet  competition,  and  concedes  the 
right  exercised  in  good  faith  of  selecting  customers. 
Time  alone  can  show  what  a  prohibition  thus  qualified 
will  accomplish. 

Even  in  the  case  of  railroads  an  unqualified  prohibition 
of  discrimination  would  be  meaningless.  The  outright 
prohibition  can  apply  only  to  differences  made  between 
persons  requiring  precisely  the  same  service,  and  the 
Interstate  Commerce  Act  recognized  this  by  adding  to  its 
prohibition  the  qualifying  words:  "under  substantially 
similar  circumstances  and  conditions."  These  words  were 
found  both  in  the  clause  (sec.  2)  dealing  with  personal 
discrimination  and  in  the  clause  known  as  the  long-and- 
short-haul  clause  (sec.  4)  dealing  with  local  discrimi- 
nation. It  is  significant  that  the  Supreme  Court  took 
a  much  more  liberal  view  of  the  dispensation  in  the  latter 
case,  permitting  competitive  conditions  to  be  taken  into 
account  as  between  localities,  but  not  as  between  persons 
(compare  Interstate  Com.  Commission  v.  B.  6*  0.  R.  Co., 
145  U.S.  263,  and  East  Tenn.  R.  Co.  v.  Interstate  Com. 
Commission,  181  U.S.  i).  Since  the  railroad  company 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  133 

exercised  the  primary  judgment  as  to  what  competitive 
conditions  required,  its  power  of  discrimination  was  not 
seriously  impaired;  the  city  of  Danville  in  Virginia, 
which  was  generally  understood  to  be  particularly 
prejudiced  as  compared  with  rival  cities,  was  unable  to 
obtain  relief  in  the  courts  (122  Fed.  800,  195  U.S.  639). 

A  further  step  was  therefore  taken  in  1910  when 
Congress  removed  the  qualifying  reference  to  similarity 
of  conditions  from  the  long-and-short-haul  clause  and 
made  the  prohibition  against  charging  more  for  a  shorter 
than  for  a  longer  distance  absolute,  subject  only  to  a 
dispensing  power  of  the  Interstate  Commerce  Commis- 
sion, and  to  a  temporary  continuance  of  existing  rates. 
Apparently  the  purpose  of  the  change  in  the  law  was  to 
shift  the  primary  judgment  as  to  the  exigencies  of  com- 
petition from  the  railroad  company  to  the  Commission. 
As  the  Supreme  Court  has  pointed  out  in  the  Inter- 
mountain  Rate  cases  (234  U.S.  476),  the  considerations 
here  coming  into  play  are  matters  of  "public  concern," 
i.e.,  affect  economic  policies  nation-wide  hi  their  opera- 
tion, and  this  fact  justifies  the  transfer  of  the  power  to 
give  effect  to  these  considerations  from  the  private  cor- 
poration to  a  governmental  authority.  It  is  recognized 
that  the  principle  of  non-discrimination  may  be  overcome 
by  some  other  principle,  which  the  act  does  not  define. 
The  Supreme  Court  says  that  this  lack  of  definition  is  not 
fatal  to  the  act,  since  the  judgment  of  the  railroad 
company  likewise  was  not  controlled  by  any  definite 
principle.  This  argument  implies  that  the  railroad 


134  STANDARDS  OF  AMERICAN  LEGISLATION 

company  in  making  discriminations  had  been  exercising 
in  reality  governmental  functions.  This  can  hardly  be 
conceded,  for  the  railroad  company  was  guided  by 
considerations  of  "sound  business,"  and  if  sound  business 
undoubtedly  includes  a  regard  for  the  development  of 
the  country  and  for  the  equities  of  vested  interests,  it 
also  implies  a  residual  factor  of  discretion  which  is  more 
appropriate  to  the  control  of  the  railroad  by  the  owner 
than  to  the  control  of  the  owner  by  the  government. 
Upon  what  basis  will  the  government  sanction  a  departure 
from  the  principle  of  non-discrimination?  The  law 
apparently  leaves  it  to  the  Commission  to  evolve  policies 
for  which  there  are  neither  precedents  nor  standards. 
The  situation  would  be  intolerably  perplexing  were  it 
not  for  the  fact  that  practically  the  conditions  already 
established  by  railroad  management  must  be  respected, 
and  that  as  long  as  railroads  remain  in  private  ownership 
their  initiative  must  in  the  nature  of  things  be  always  an 
important  and  often  a  controlling  factor  in  the  ultimate 
decision. 

7.  New  standards  and  ascertained  facts. — From  the 
point  of  view  of  constitutional  law  it  is  clear  that  the  new 
standards  are  debatable  ground.  The  rule  of  non- 
discrimination  is  conspicuous  for  having  escaped  attack 
as  being  in  violation  of  fundamental  principles ;  practically 
all  the  other  new  restrictions  or  requirements  have  been 
declared  by  some  courts  to  be  inconsistent  with  con- 
stitutional rights.  At  best  there  is  in  the  decisions  a 
note  of  hesitation  and  uncertainty,  and  we  are  com- 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  135 

pelled  to  consider  whether  the  judicial  attitude  of  skepti- 
cism or  resistance  is  not  in  some  degree  justified  or  at 
least  explained  by  legislative  shortcomings. 

The  very  category  of  contested  or  unmatured  stand- 
ards is  likely  to  carry  with  it  the  same  weakness  as  that 
of  remote  and  conjectural  dangers,  namely,  that  the  new 
legislation  has  neglected  to  substantiate  itself  by  a 
foundation  of  demonstrated  facts.  Legislative  activity 
is  in  most  cases  responsive  to  some  grievance.  In  rare 
cases,  as  in  some  conspicuous  instances  of  rate  discrimi- 
nation, the  grievance  may  be  fancied  rather  than  real; 
generally  it  is  a  genuine  one.  But  that  it  is  genuine  does 
not  necessarily  mean  that  either  its  nature  or  its  remedy 
is  understood;  still  less,  that  all  has  been  done  that  is 
necessary  to  convince  public  opinion  of  an  injustice  done 
and  suffered.  The  student  of  the  history  of  legislation  has 
constant  occasion  to  wonder,  not  merely  at  the  absence 
of  impartial  and  authoritative  statements  of  facts  and 
conclusions,  but  at  the  entire  failure  on  the  part  of  those 
demanding  legislative  interference  to  make  an  impressive 
or  plausible,  or,  for  that  matter,  any  kind  of  a  presenta- 
tion of  their  case. 

The  commission  inquiries  preceding  the  enactment 
of  workmen's  compensation  and  minimum-wage  legis- 
lation serve  to  mark  the  contrast;  had  store-order, 
weekly-payment,  or  coal-weighing  acts  been  prepared  in 
a  similar  manner,  it  is  hardly  conceivable  that  they  would 
have  fared  so  ill  at  the  hands  of  the  courts.  The  action 
of  the  Supreme  Court  in  sustaining  the  new  Ohio  coal- 


136  STANDARDS  OF  AMERICAN  LEGISLATION 

weighing  statute  tends  to  prove  this  (Rail  &  River  Coal 
Co.  v.  Yaple,  236  U.S.  338).  In  California  an  act  is 
passed  forbidding  the  resale  of  theater  tickets  at  an 
enhanced  price.  The  legislature  is  vaguely  aware  that 
in  connection  with  the  sale  of  tickets  at  hotels  and 
similar  places  some  abuses  exist.  What  precisely  are 
these  abuses?  Is  there  a  legitimate  demand  for  sale 
elsewhere  than  at  the  box  office?  If  so,  does  the  new 
legislation  meet  it  ?  How  does  it  affect  existing  arrange- 
ments ?  Who  is  sponsor  for  the  new  law  ?  If  an  answer 
to  these  questions  exists,  if  they  have  ever  been  asked, 
the  information  is  certainly  not  found  anywhere  on 
record.  The  consequence  is  that  the  court  remains 
unconvinced;  it  finds  in  the  forbidden  practice  no 
tendency  to  injure  the  public,  and  nothing  in  it  more 
immoral  than  in  the  sale  of  any  other  commodity  at  a 
profit,  and  it  declares  the  act  invalid.  (Re  Quarg,  149 
Cal.  79).  The  case  is  altogether  typical.  The  judicial 
reasoning  is  not  very  satisfactory;  neither,  however,  is  the 
fact  of  such  a  decision  unintelligible.  The  court  simply 
refuses  to  accept  the  mere  enactment  of  the  statute  as  an 
explanation  or  as  the  expression  of  mature  judgment. 
Had  the  court  sustained  the  statute,  the  objection  to  it 
would  be  the  same;  indeed,  the  lack  of  substantiation 
does  not  insure  judicial  condemnation,  just  as  the  careful 
substantiation  of  the  workmen's  compensation  act  of 
New  York  did  not  insure  its  approval.  But  there  can  be  no 
doubt  that  a  statute  is  strengthened  or  weakened  accord- 
ing to  the  degree  of  care  with  which  its  foundation  is  laid. 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  137 

8.  Corrective  and  discretionary  regulation. — Another 
possible  factor  of  weakness  in  the  legislative  establish- 
ment of  new  standards  involves  the  difference  between 
two  degreees  of  regulation  which  may  be  designated 
respectively  as  corrective  (abuse-correcting)  and  dis- 
cretionary (standard-creating).  The  difference  is  per- 
haps best  illustrated  by  the  problem  of  aesthetic 
standards.  The  entire  case  for  billboard  legislation  is 
prejudiced  if  extravagant  claims  are  put  forward  on 
behalf  of  a  legislative  power  to  impose  new  canons  of 
taste,  for  the  advance  from  the  protection  of  health, 
safety,  morals,  or  even  comfort,  to  the  protection  of 
refined  sensibilities  is  too  great  to  be  taken  otherwise 
than  very  gradually.  The  law  should,  for  the  present  at 
least,  go  no  farther  than  to  deal  with  obvious  disfigure- 
ment or  the  impairment  of  places  already  lifted  to  an 
exceptional  plane  of  beauty,  and  thus  mark  distinctly 
its  conserving  function;  and  such  is  the  character  of 
European  legislation  upon  the  subject,  which  recognizes 
the  difference  between  establishing  a  new  norm  and 
saving  a  norm  already  established. 

The  difference  is  of  importance  in  other  fields  of 
legislation.  The  state  as  an  employer  of  labor  may  set 
model  terms  of  employment,  although  unfortunately  it 
does  not  always  do  so;  we  concede  to  the  state  the  same 
power  over  the  employment  of  labor  by  municipalities, 
and — more  reluctantly — by  public  contractors;  but  when 
the  law  deals  with  mere  private  employment,  the  view 
as  yet  prevalent  is  that  its  interference  should  be  justified 


138  STANDARDS  OF  AMERICAN  LEGISLATION 

by  some  danger  that  calls  for  prevention,  or  by  some  abuse 
that  calls  for  redress:  protection,  not  reconstruction. 
The  difference  between  a  ten-hour  day  and  an  eight-hour 
day,  between  a  one-day  rest  in  seven  and  a  Saturday 
half-holiday,  between  a  minimum  wage  and  a  standard 
wage,  between  usury  laws  and  other  price  regulations, 
while  in  one  sense  differences  of  degree,  may  in  this  light 
be  also  looked  upon  as  differences  of  principle. 

It  is  the  difference  between  the  eight-hour  and  the 
ten-hour  maximum  day,  that  the  latter  already  repre- 
sents a  norm  while  the  former  does  not,  so  that  an  excess 
over  ten  hours  may  legitimately  be  dealt  with  as  an  abuse, 
while  the  same  is  hardly  true  of  a  nine-hour  day.  So, 
also,  to  take  away  the  employer's  right  to  discharge  the 
employee  would  mean  an  entire  reconstruction  of  indus- 
trial labor,  and  would  go  far  beyond  the  scope  of  corrective 
legislation,  while,  as  before  pointed  out,  the  English 
legislation  prohibiting  with  regard  to  agricultural  holdings 
unreasonable  notices  to  quit  merely  legalized  existing 
social  restraints  and  obligations. 

It  might  be  tempting  to  make  this  difference  controlling 
for  constitutional  purposes,  particularly  in  the  matter  of 
economic  labor  legislation.  Freedom  of  contract  is  at  best 
a  vague  concept;  but  some  content  might  be  given  to  it 
by  insisting  that  in  a  free  government  the  function  of 
legislation  is  not  to  mold  human  relations,  but  merely  to 
maintain  them  safe  from  harm  or  abuse.  Perhaps  the 
courts  that  enunciated  the  doctrine  of  a  constitutional 
freedom  of  contract  had  something  like  this  idea  in  mind. 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  139 

If  so,  they  not  merely  failed  to  formulate  it  clearly,  but 
did  not  even  apply  it  in  any  intelligible  manner.  For 
by  the  entire  experience  of  industrial  history  truck  or 
store-order  legislation  was  abuse-correcting  and  not 
standard-creating  in  character;  the  abuses  hi  connection 
with  coal-weighing  methods  were  patent  and  notorious, 
and  long  intervals  between  wage  payments  placed  work- 
men in  a  state  of  undesirable  dependence.  Generally 
speaking,  indeed,  the  demands  of  labor  have  been  confined 
to  the  correction  of  evils  and  abuses,  and  the  most  conspicu- 
ous exceptions  from  this  rule,  the  establishment  by  law  of 
an  eight-hour  day  in  the  mining  and  smelting  industry 
of  several  western  states,  seems  to  have  been  considered 
as  sanitary  legislation  and  was  sustained  as  such  by  the 
Supreme  Court.  If  then  labor  legislation  has  been  of  the 
corrective  and  not  of  the  standard-creating  type,  no  con- 
stitutional issue  on  this  basis  was  presented  to  the  court. 
The  recent  minimum-wage  acts  illustrate  the  same 
conservative  spirit  of  legislation.  The  substantive  pro- 
visions of  some  of  these  acts  are  perhaps  somewhat 
liberal  in  their  phrasing  of  the  standard-wage  require- 
ment, but  these  substantive  clauses  are  inoperative 
without  the  machinery  of  administrative  hearings  and 
findings,  by  which  they  are  consequently  controlled. 
The  constitution  of  the  wage  boards  and  their  procedure 
is  such  that  the  wage  established  can  hardly  rise  above 
that  niinimum,  short  of  which  the  amount  paid  is  acknowl- 
edged to  be  underpayment,  the  result  being  again  cor- 
rective rather  than  discretionary  action. 


140  STANDARDS  OF  AMERICAN  LEGISLATION 

It  is  not  always  easy  to  determine  whether  legislative 
action  belongs  to  the  one  type  or  to  the  other.  The 
constitutional  doctrine  of  the  Granger  cases  subjected 
business  affected  with  a  public  interest  to  a  power  of 
discretionary  regulation,  and  such  a  power  was  exercised 
in  the  two-cent-passenger-fare  legislation  of  1907,  a 
legislation  not  only  not  amenable  to  the  ordinary  canons 
of  the  police  power,  but  entirely  indefensible  upon  any 
principle.  Congress,  in  undertaking  rate  regulation  in 
1887,  adopted  the  corrective  type  by  leaving  the  primary 
fixing  of  rates  with  the  carrier,  and  requiring  for  Commis- 
sion action  some  well-founded  complaint,  which  is  not 
made  out  by  merely  showing  that  the  rate  is  higher  than 
might  constitutionally  be  fixed  by  legislation  (Interstate 
Com.  Commission  v.  Stickney,  215  U.S.  98;  Southern  Pac. 
R.  Co.  v.  Interstate  Com.  Commission,  219  U.S.  433). 

The  long-and-short-haul  clause  was  likewise  conceived 
as  corrective  legislation,  for  the  discrimination  against 
which  it  was  directed  was  considered  as  wrong  in  principle. 
If  that  assumption  was  not  true,  its  outright  prohibi- 
tion would  have  been  discretionary  and  not  corrective 
legislation.  No  such  outright  prohibition  was  attempted 
in  1887,  but  the  Act  of  1910  did  at  least  in  terms  attempt 
to  create  a  prohibition  absolute  but  for  an  uncircum- 
scribed  dispensing  power  vested  in  the  Commission.  Such 
a  provision  might  develop  into  a  type  of  discretionary 
regulation.  If  it  is  true  that  competitive  conditions 
make  local  discrimination  an  economic  necessity,  then 
that  discrimination  is  an  essential  part  of  the  primary 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  141 

function  of  rate-making  and  cannot  be  transferred  from 
the  carrier  to  the  government  without  changing  the 
character  of  rate  regulation.  The  administration  of 
section  4  of  the  Commerce  Act  as  amended  in  1910  will 
determine  this  important  issue. 

Corrective  legislation  may  be  said  to  be  the  charac- 
teristic form  of  exercise  of  the  police  power.  When 
acting  in  a  proprietary  capacity,  in  making  expenditures, 
undertaking  public  works,  managing  public  institutions 
and  property,  providing  revenue  by  taxation  or  otherwise, 
the  state  must  necessarily  set  its  own  norms,  because 
there  is  no  primary  private  discretion  to  act  upon.  The 
state's  action  is  also  likely  to  be  discretionary  where  it 
operates  by  way  of  license,  particularly  in  determining 
the  form  and  scope  of  corporate  organization  and  action, 
but  such  discretionary  control  is  generally  understood  not 
to  extend  to  the  management  of  the  corporate  business 
within  the  scope  of  its  charter  powers. 

In  dealing  with  private  relations  the  law  will  find  it 
easier  to  impose  entirely  new  norms  where  rights  cannot 
be  enjoyed  otherwise  than  through  invoking  the  aid  and 
power  of  the  law;  it  is,  hi  other  words,  simpler  to  control 
remedies  than  primary  rights,  and  simpler  to  control 
newly  created  than  old-established  remedies.  In  creating 
a  cause  of  action  for  negligence  resulting  in  death,  a 
limitation  of  the  amount  to  be  recovered  was  readily 
imposed  in  many  states,  while  until  recently  no  such 
limitation  was  imposed  in  the  case  of  non-fatal  injuries 
which  are  actionable  at  common  law.  If  the  married 


142  STANDARDS  OF  AMERICAN  LEGISLATION 

women's  legislation  of  the  nineteenth  century  assumed 
the  form  of  an  entire  reconstruction  of  a  civil  relation, 
this  was  possible  because  the  law  simply  refused  for  the 
future  the  bestowal  of  benefits  that  depended  upon  its 
positive  sanction;  an  equally  incisive  regulation  in  the 
opposite  direction  trying  to  re-establish  the  old  regime 
of  coverture  would  be  so  manifestly  an  impossibility  that 
its  constitutional  aspects  need  not  even  be  discussed. 
Any  attempt  to  transform  by  law  the  distribution  of 
property  would  naturally  begin  with  controlling  the 
transmission  of  decedents'  estates,  because  here  again 
rights  depend  upon  the  positive  sanction  of  the  law;  only 
in  a  purely  theoretical  sense  is  this  true  of  transfers  by 
gift,  and  to  control  these  in  a  similar  manner  would 
prove  to  be  a  very  different  undertaking.  That  restrict- 
ive legislation  should  be  corrective  legislation  is  a  lim- 
itation of  legislative  power  which  depends  upon  actual 
conditions  rather  than  upon  abstract  distinctions,  and 
which  is  in  consequence  more  powerful  than  constitu- 
tional guaranties;  and  a  system  of  principles  of  legislation 
which  should  ignore  the  difference  between  the  conserva- 
tive and  creative  function  of  law  because  it  is  not  expressed 
in  the  constitution  would  be  fundamentally  defective. 
Very  little,  indeed,  would  be  gained,  and  considerable 
confusion  might  be  caused  by  an  attempt  to  formulate  the 
difference  as  a  rule  of  constitutional  law.  It  carries  its 
only  possible  and  adequate  sanction  in  the  living  consti- 
tution of  society  and  the  state.  Conditions  will  arise 
under  which  radical  steps  may  have  to  be  taken  by 


THE  TASKS  AND  HAZARDS  OF  LEGISLATION  143 

legislation;  the  history  of  the  nineteenth  century  has 
seen  fundamental  changes,  more  perhaps  in  the  law  of 
personal  status,  in  the  relation  of  husband  and  wife  and 
parent  and  child,  than  in  the  law  of  property;  but, 
generally  speaking,  such  changes  have  not  been  precipi- 
tated upon  a  society  not  fully  prepared  for  them.  Past 
experience  does  not  indicate  that  in  the  matter  of  the 
establishment  of  new  standards  our  legislatures  are  very 
much  less  conservative  than  the  courts. 


CHAPTER  IV 
CONSTITUTIONAL  PROVISIONS 

The  advance  of  legislation  to  new  fields  of  control  is 
accompanied  and  sometimes  checked  by  the  constant 
recurrence  of  doubts  concerning  the  constitutional  validity 
of  measures.  We  have  for  a  considerable  time  been 
accustomed  to  express  limitations  in  separate  instruments 
which  we  designate  as  constitutions,  and  these  have  con- 
stantly grown  in  bulk  and  in  variety  of  content.  It  is 
natural  to  inquire  what  relation  the  ever-growing  mass  of 
constitutional  provisions  bears  to  the  problem  of  principles 
hi  legislation. 

In  approaching  this  inquiry  we  are  struck  by  the 
attitude  of  indifference  and  neglect  revealed  in  the 
teaching  and  writing  of  law  toward  the  positive  content 
of  American  state  constitutions.  The  juristic  treatment 
of  constitutional  law  is  almost  exclusively  concerned 
with  the  checks  upon  governmental  power  worked  out 
by  the  courts  upon  the  basis  of  very  general  clauses  with- 
out very  definite  meaning.  Only  in  the  adjustment 
between  state  and  national  powers  does  the  positive  or 
conventional  side  of  the  subject  claim  equal  attention,  so 
that  federal  constitutional  law  has  a  very  different 
character  from  constitutional  law  in  general.  No  ade- 
quate systematic  account  of  the  development  of  state 

constitutions  with  reference  to  their  place  in  our  public 

144 


CONSTITUTIONAL  PROVISIONS  145 

law  is  to  be  found  in  any  constitutional  treatise.  Yet 
without  a  clear  view  of  the  main  currents  of  state  con- 
stitutional provisions  it  is  impossible  to  determine  to 
what  extent  and  with  what  success  our  constitutional  law 
performs  the  function  of  controlling  statutory  legislation. 

Even  a  cursory  examination  of  state  constitutions 
naturally  leads  to  a  differentiation  of  then*  provisions 
into  several  principal  groups,  the  most  important  dividing 
line  being  between  governmental  organization  and  gov- 
ernmental action. 

From  the  beginning  the  former  group  has  occupied 
more  space  than  the  latter  and,  notwithstanding  the 
relatively  greater  development  of  the  latter,  has  retained 
its  preponderance. 

This  is  due  to  a  considerable  extent  to  the  well-known 
tendency  to  fix  more  and  more  in  detail  the  organization 
and  jurisdiction  of  courts,  left  in  the  older  constitutions 
entirely  or  nearly  so  to  the  legislature,  while  under  the 
more  recent  instruments  legislative  action  touching  the 
courts  is  impeded  at  every  step;  and  to  the  growing 
habit  of  giving  a  number  of  administrative  officers  (the 
selection  being  somewhat  haphazard)  a  constitutional 
status. 

This  excess  of  detail  forms  one  of  the  least  defensible 
features  of  American  constitutions.  The  line  between 
province  of  constitution  and  province  of  statute  is  drawn 
on  no  discoverable  principle.  Important  or  distinctive 
policies  regarding  status,  structure,  or  mutual  relations 
of  constitutionally  recognized  offices  are  either  entirely 


146  STANDARDS  OF  AMERICAN  LEGISLATION 

absent,  or  are  traceable  only  with  difficulty  in  a  mass  of 
comparatively  irrelevant  detail.  There  is  hardly  any 
provision  that  makes  for  high  quality  or  efficiency  of 
administration,  the  tendency  being,  on  the  contrary, 
toward  unwise  decentralization  and  dissipation  of  power. 
Distrust  of  the  legislature  and  the  fear  that  its  power  over 
organization  might  be  abused  for  partisan  purposes  was 
obviously  the  ruling  motive  when  the  tendency  first 
asserted  itself,  and  found  some  justification  in  the  then 
widespread  mischievous  practice  of  special  and  local 
legislation.  Today  the  danger  of  legislative  impairment 
of  the  legitimate  province  of  either  judicial  or  executive 
action  is  extremely  remote,  and  the  constitutional  status 
of  courts  and  officers,  without  serving  any  valuable 
purpose,  blocks  the  legitimate  functions  of  legislation  at 
points  unforeseen  or  unforeseeable  by  the  framers  of  the 
constitution. 

Thus  the  constitution,  in  organizing  an  office,  inci- 
dentally says  that  the  head  of  the  office  shall  appoint 
his  subordinates;  a  subsequently  enacted  civil-service 
law  is  thereby  made  inapplicable  to  that  office  (People  v. 
Angle  109  N.Y.  564).  Or  the  constitution,  in  authorizing 
the  establishment  of  probate  courts,  provides  that  such 
courts  shall  have  original  jurisdiction  of  all  probate 
matters  and  the  settlement  of  estates  of  deceased  persons. 
This  phraseology  is  held  to  exclude  power  over  testa- 
mentary trusts,  and  an  extension  of  jurisdiction,  univer- 
sally acknowledged  to  be  beneficial  and  which  on  account 
of  a  slightly  different  wording  may  be  given  to  county 


CONSTITUTIONAL  PROVISIONS  147 

courts,  must  be  withheld  from  probate  courts  (248  HI. 
520;  249  111.  30).  Obviously  governmental  effectiveness 
is  lost  without  corresponding  gain. 

It  is  the  overloading  of  constitutions  with  unessential 
matter  that  makes  them  impediments  in  the  path  of 
needed  progress  after  a  relatively  short  time;  a  new 
constitution  re-creates  the  same  conditions,  necessitating 
revision  after  a  few  decades.  The  constitution  of  Illi- 
nois, which  dates  from  1870,  is  said  to  be  antiquated,  but 
the  features  that  make  it  antiquated  will  be  multiplied 
and  aggravated  in  a  new  instrument.  The  first  consti- 
tution of  the  state,  enacted  a  hundred  years  ago  (1818), 
would  need  only  two  changes  to  be  more  serviceable  at 
the  present  day  than  the  constitution  of  1870:  in  the 
provision  for  election  of  judges  and  treasurer  by  the 
legislature  and  the  provision  for  constitutional  amend- 
ment without  resort  to  a  referendum.  The  suffrage 
clause  limiting  the  franchise  to  whites  is  superseded  by 
the  Fifteenth  Amendment,  and  the  word  "male"  is 
also  in  the  constitution  of  1870.  The  absence  of  the 
various  clauses  prohibiting  legislation  of  various  sorts 
would  place  Illinois  simply  in  the  condition  in  which 
Massachusetts  is  today;  and  hi  Massachusetts  the  chief 
demand  is  not  for  new  limitations  on  the  legislative  power. 

PROVISIONS  TO  INCREASE  POPULAR  CONTROL 

If  this  phase  of  constitution-making  is  conspicuous 
for  lack  of  definite  purpose,  the  same  cannot  be  said  of 
another  tendency  which  has  likewise  helped  to  swell  the 


148  STANDARDS  OF  AMERICAN  LEGISLATION 

bulk  of  constitutions  on  their  structural  side.  This  is  the 
tendency  to  democratize  state  government.  For  over  a 
hundred  years  the  American  people  have  experimented 
upon  the  problem  of  how  to  give  correct  and  adequate 
expression  to  that  elusive  political  factor,  the  popular  will. 
An  abiding  faith  in  popular  government  has  been  accom- 
panied by  an  ever-renewed  dissatisfaction  with  the  forms 
and  organs  through  which  it  was  sought  to  be  realized. 
Suffrage  and  the  ballot,  basis  of  representation,  tenure  of 
office,  and  direct  legislation  are  the  instrumentalities  and 
methods  through  which  the  object  of  an  enlarged  popular 
control  has  been  sought  to  be  attained,  and  it  was  legiti- 
mate and  natural  to  fix  as  far  as  possible  these  points  in 
the  constitution  itself.  Leaving  aside  the  race  question, 
the  principle  of  suffrage  had  seemed  to  be  settled  until  the 
demand  for  the  enfranchisement  of  women  made  it 
again  a  political  issue.  The  problem  of  the  most  effectual 
method  of  exercising  the  suffrage  involved  a  machinery 
of  controlling  nominations  and  guarding  the  secrecy  and 
honesty  of  the  ballot  too  complex  to  be  dealt  with 
adequately  in  the  constitutions  which,  notwithstanding 
some  elaborate  provisions  regarding  registration,1  do  not 
fully  reflect  this  movement.  The  principle  of  elective 
office  had  its  most  notable  triumph  when  the  New  York 
constitutional  convention  of  1846  accepted  it,  apparently 
without  serious  opposition,  for  the  reorganized  judiciary 
of  the  state.2  While  up  to  that  time  appointment  by 

1  Notably  in  Alabama,   sees.  186,  187. 

3  The  debates  of  the  New  York  constitutional  convention  of  1846  are 
meager  upon  the  subject  of  the  change  to  an  elective  judiciary.    There  was 


CONSTITUTIONAL  PROVISIONS  149 

the  executive  or  election  by  the  legislation  had  been 
the  almost  unbroken  rule  (Georgia,  1798,  1808,  and 
Mississippi,  1832,  formed  exceptions),1  popular  election 
of  judges  appears  with  increasing  frequency  after  1846 
(Wisconsin  and  Illinois,  1848;  California,  1849;  Michigan 
and  Kentucky,  1850;  Iowa,  Oregon,  and  Minnesota, 
1857).  Constitutional  enactment  was  practically  always 
necessary  to  effect  the  change. 

The  principle  of  direct  legislation  first  expressed  itself 
in  sporadic  provisions  for  periodical  constitutional  con- 
ventions (New  Hampshire,  1792)  and  did  not  (except  in 
the  form  of  local  option)  become  an  important  factor  until 
the  very  end  of  the  nineteenth  century,  when  referendum 
and  initiative  started  on  their  rapid  career.3 

This  phase  of  constitution-making  is  evidence  of  the 
persistent  desire  to  establish  direct  popular  control  in 
some  way:  if  representative  assemblies  prove  unsatis- 
factory, then  through  the  organs  of  administration;  if 
that  method,  too,  proves  disappointing,  then  through  a 

some  opposition,  and  it  was  stated  that  sentiment  was  divided.  It  appears 
that  with  regard  to  the  highest  court  the  fact  counted  that  it  had  been  partly 
elective  in  the  past,  the  Senate  having  formed  part  of  the  Court  of  Errors, 
while  with  regard  to  inferior  courts  there  was  a  feeling  that  appointment 
had  degenerated  to  a  mere  ratification  of  caucus  nominations. 

'Both  states  subsequently  abandoned  the  method  of  popular  election; 
Mississippi,  however,  returned  to  it  in  1912  for  the  judges  of  the  circuit  and 
chancery  courts,  and  Georgia  somewhat  earlier  by  a  series  of  constitutional 
amendments. 

2  South  Dakota  adopted  a  constitutional  amendment  looking  toward  ini- 
tiative and  referendum  in  1898.  Utah  followed  in  1900.  A  self-executing 
amendment  was  adopted  in  Oregon  in  1902.  The  following  other  states  have 
since  committed  themselves  to  the  new  movement:  Arizona,  California,  Colo- 
rado, Maine,  Missouri,  Nevada,  Oklahoma,  and  Ohio.  New  Mexico  and 
Maryland  have  adopted  the  referendum  only. 


I  $0  STANDARDS  OF  AMERICAN  LEGISLATION 

direct  voice  in  the  adoption  or  rejection  of  measures.  In 
either  case  the  possession  of  the  power  is  more  highly 
prized  than  its  exercise:  the  relatively  slight  vote  on 
initiative  propositions  is  even  more  striking  than  the 
indifference  often  manifested  in  elections  for  minor 
offices. 

The  genuinely  popular  desire  for  potential  control  is, 
however,  a  sufficient  basis  to  support  the  demand  of  the 
relatively  small  group  of  those  possessed  of  political 
skill  and  ambition  for  an  active  share  in  the  government, 
and  it  has  been  found  necessary  and  probably  wise  to 
give  an  outlet  to  their  aspirations.  Hence  first  the 
chance  to  obtain  office,  next  the  chance  to  become  a 
candidate  for  office,  and  finally  a  direct  voice  in  the 
determination,  and  even  a  hand  in  the  shaping,  of  poli- 
cies. Since  the  entire  movement  makes  for  dissipation  of 
power  and  responsibility,  the  huge  apparatus  of  popular 
control  has  always  been  disappointing  in  its  results  to 
those  who  favor  it,  and  has  not  realized  the  alarms  of 
those  who  fear  it.  From  time  to  time  a  slight  reaction 
is  noticeable,  as  in  the  present  "short-ballot"  movement, 
but,  generally  speaking,  the  forward  movement  has  been 
maintained  with  great  constancy.  Referendum  and 
initiative  have  certainly  not  run  their  full  course,  and  in 
really  important  matters  the  principle  of  popular  election 
is  advancing  and  not  receding;  witness  the  diminution 
of  the  number  of  states  which  retain  the  appointive 
judiciary,  and  the  adoption  of  the  Seventeenth  Amend- 
ment of  the  Federal  Constitution. 


CONSTITUTIONAL  PROVISIONS  I$I 

PROVISIONS    RELATING    TO    LEGISLATIVE    POLICY 
OR   ACTION 

Turning  to  the  second  main  group  of  constitutional 
provisions,  relating  to  legislative  or  governmental  policy 
or  action,  there  has  likewise  been  much  addition  and 
expansion.  Not  only,  however,  has  the  development 
been  less  homogeneous  in  spirit,  but  there  has  been  an 
almost  complete  reversal  from  the  tendencies  originally 
manifested.  To  demonstrate  this  it  will  be  helpful  to 
differentiate  provisions  according  to  their  historical 
relations. 

The  first  place  belongs  to  the  inheritances  of  former 
centuries:  to  achievements  and  the  results  of  struggles 
of  English  and  Colonial  constitutional  history  (bills  of 
attainder,  habeas  corpus,  subordination  of  military  to 
civil  authority,  searches  and  seizures,  free  speech,  press, 
religion,  and  assembly,  the  various  procedural  guaranties 
in  criminal  cases  and  jury  trial,  and  due  process  or  the 
law  of  the  land)  or  to  philosophical  doctrines  of  natural 
right  (ex  post  facto  laws,  taking  of  private  property  for 
public  use,  hereditary  privileges  and  honors,  titles  of 
nobility,  standing  laws,  reasonable  laws,  declarations 
reserving  powers  to  the  people  or  referring  to  the  people 
as  the  source  of  political  power). 

Many  of  these  clauses  were  not  in  the  first  instance 
directed  against  abuses  of  legislative  power,  but  rather 
against  the  executive;  in  a  small  number  of  cases, 
indeed  (taxation,  standing  army,  suspension  of  laws), 


152  STANDARDS  OF  AMERICAN  LEGISLATION 

legislative  action  is  relied  upon  as  the  sole  security  of 
constitutional  rights. 

It  is  noteworthy  that  the  constitutional  experiences 
of  the  two  most  critical  periods  of  American  history,  the 
Revolution  and  its  aftermath  and  Civil  War  and  Recon- 
struction, left  their  impress  primarily  upon  the  Federal 
Constitution.  The  prohibition  of  laws  impairing  the 
obligation  of  contracts  and  the  guaranty  of  the  equal 
protection  of  the  laws  first  appeared  as  national  restraints 
upon  state  action,  and,  where  adopted  by  the  states, 
have  been  borrowed  from  the  Federal  Constitution. 

The  numerous  additional  restraints  which  the  nine- 
teenth century  brought  were  all  directed  against  the 
legislative  power,  for  the  executive  had  practically  ceased 
to  be  an  independent  source  of  authority.  Being,  more- 
over, the  fruit  of  experiences  derived  from  the  legislative 
history  of  the  states,  they  were  no  longer  dictated  by  a 
fear  of  suppression  of  popular  liberties.  Political  danger 
now  meant  the  danger  of  practical  politics:  waste, 
improvidence,  fraud,  local  or  special  interests.  Popular 
right  was  no  longer  identified  with  individual  right,  but 
rather  with  common  public  interests.  The  restrictions 
look  to  everyday  concerns  of  government  and  not  to 
critical  periods  of  constitutional  struggle. 

Restraints  on  the  formal  side  of  legislation. — The 
restraints  relating  to  the  purely  formal  side  of  legislation 
are  either  procedural  or  style  requirements.  The  follow- 
ing are  the  most  common  or  the  most  conspicuous  of  the 
procedural  requirements: 


CONSTITUTIONAL  PROVISIONS  153 

That  bills  shall  be  read  three  times;  first  found  in 
North  Carolina,  1776;  qualified  so  that  readings  must 
be  on  separate  days  (first,  South  Carolina,  1780)  or,  in 
addition,  so  that  reading  shall  be  at  large  or  at  length  (so 
in  Illinois). 

That  bills  shall  be  referred  to  committees  and  be 
reported  by  them. 

That  bills  shall  not  be  introduced  after  a  stated 
period. 

That  rejected  measures  shall  not  be  reintroduced  at 
the  same  session;  that  a  motion  to  reconsider  shall  not 
be  entertained  on  the  day  of  the  passing  of  the  motion. 

That  bills  and  all  amendments  shall  be  printed. 

That  bills  shall  be  on  the  desks  of  members  in  their 
final  form  three  days  before  their  passage. 

That  the  majority  of  all  the  members  is  required  for 
the  passage  of  a  bill;  that  the  vote  must  be  by  yeas  and 
nays  and  entered  on  the  journal. 

That  the  signature  of  the  presiding  officer  shall  be 
affixed  in  open  session  under  suspension  of  business. 

Some  of  these  provisions  are  salutary,  and  their  ful- 
filment can  be  very  readily  verified;  so  particularly  the 
one  regarding  the  final  vote.  Others,  on  the  other  hand, 
are  quite  impracticable;  e.g.,  that  a  bill  be  read  at  large 
three  times.  In  the  case  of  long  bills  this  must  be 
ignored,  and  the  clerk  will  simply  read  the  first  and  last 
few  words,  and  the  necessary  fraud  will  be  covered  up  by 
a  false  entry  in  the  journal.  Some  can  be  reduced  to 
unmeaning  and  perfunctory  forms,  so  that  really  nothing 


154  STANDARDS  OF  AMERICAN  LEGISLATION 

is  gained  by  the  requirement;  e.g.,  the  requirement  to 
report  on  bills,  or  the  recitals  indicating  an  emergency. 
Some  give  rise  to  difficult  questions  of  construction,  as, 
e.g.,  whether  an  amendment  alters  the  subject-matter  of 
the  bill,  or  still  more,  whether  it  alters  it  substantially. 

The  sound  policy  of  constitution-making  is  to  impose 
procedural  requirements  only  under  the  following  con- 
ditions: (i)  that  they  serve  an  object  of  vital  importance; 
(2)  that  they  can  be  complied  with  without  unduly 
impeding  business;  (3)  that  they  are  not  susceptible  of 
evasion  by  purely  formal  compliance  or  by  false  journal 
entries;  (4)  that  they  do  not  raise  difficult  questions  of 
construction;  (5)  that  the  fact  of  compliance  or  non- 
compliance  can  be  readily  ascertained  by  an  inspection  of 
the  journal.  The  application  of  these  tests  would  lead 
to  the  discarding  of  most  of  the  existing  provisions 
without  any  detriment  to  legislation,  as  is  proved  by  the 
experience  of  the  states  which  never  adopted  them. 

As  regards  requirements  of  style,  the  constitutions,  in 
addition  to  prescribing  an  enacting  clause,  deal  with  title 
and  unity  of  subject-matter  and  with  amendatory  acts; 
very  exceptionally  also  with  referential  legislation.  The 
provision  concerning  the  title  of  acts  is  usually  coupled 
with  the  other  provision  that  the  act  shall  not  embrace 
more  than  one  subject. 

In  the  state  constitutions  the  provision  regarding  title 
seems  to  appear  first  in  the  constitution  of  Georgia  of 
1798:  "Nor  shall  any  law  or  ordinance  pass  containing 
any  matter  different  from  what  is  expressed  in  the  title 


CONSTITUTIONAL  PROVISIONS  l$5 

thereof"  (art.  i,  sec.  17).  The  conjunction  of  the 
requirement  of  title  with  that  of  unity  of  subject-matter 
appears  for  the  first  time  in  the  constitution  of  New 
Jersey  of  1844  (IV,  7,  4):  "To  avoid  improper  influences 
which  may  result  from  intermixing  in  one  and  the  same 
act  such  things  as  have  no  proper  relation  to  each  other, 
every  law  shall  embrace  but  one  object,  and  that  shall  be 
expressed  in  the  title."  Such  a  provision  is  found  now 
in  about  two-thirds  of  the  state  constitutions. 

The  provision  forbidding  amendments  of  statutes  by 
mere  reference  to  title,  but  requiring  the  section  as 
amended  to  be  re-enacted,  appears  first  about  the  middle 
of  the  nineteenth  century.1  In  1835  it  is  found  in  no 
constitution.  It  is  at  present  found  in  about  twenty 
state  constitutions. 

The  requirements  regarding  title  and  subject-matter 
undoubtedly  inculcate  a  sound  legislative  practice,  and  in 
the  great  majority  of  cases  amendment  by  re-enacting  a 
section  is  preferable  to  the  amending  of  words  or  passages 
torn  from  their  context.  If  the  requirement  to  amend  in 
the  form  of  re-enacting  sections  were  generally  construed, 
as  it  has  been  in  Illinois  and  Nebraska,  as  forbidding  or 
throwing  doubt  on  supplemental  acts  altering  the  effect 
of  existing  sections,  its  inconvenience  would  be  much 
greater  than  its  benefit;  but  the  Illinois  and  Nebraska 
decisions  are  anomalous  and  indefensible. 

Conceding  that  these  requirements  of  style  have  had 
on  the  whole  a  beneficial  effect  upon  legislative  practice 

'Louisiana,  1845,  seems  to  be  the  first. 


156  STANDARDS  OF  AMERICAN  LEGISLATION 

and  the  clearness  of  statutes,  they  have  a  reverse  side 
which  must  not  be  ignored.  They  have  given  rise  to  an 
enormous  amount  of  litigation;  they  have  led  to  the 
nullification  of  beneficial  statutes;  they  embarrass  drafts- 
men, and  through  an  excess  of  caution  they  induce 
undesirable  practices,  especially  in  the  prolixity  of  titles, 
the  latter  again  multiplying  the  risks  of  defect.  While 
the  courts  lean  to  a  liberal  construction,  they  have  in  a 
minority  of  cases  been  indefensibly  and  even  preposter- 
ously technical,  and  it  is  that  minority  which  produces 
doubt,  litigation,  and  undesirable  cumbrousness  to  avoid 
doubt  and  litigation. 

The  requirements  were  introduced  to  protect  legis- 
latures from  fraud  or  surprise  and  to  stop  the  practice  of 
logrolling.  The  experience  of  those  states  which  have 
not  adopted  the  provisions  would  probably  show  that 
they  are  less  necessary  now  than  seventy-five  years  ago, 
that  better  practices  have  been  compelled  by  public 
opinion,  and  that  the  benefits  of  the  improvement  may 
be  enjoyed  without  the  attendant  risks  and  evils. 

These  risks  might  be  greatly  reduced  by  limiting  to  a 
very  brief  period  after  the  enactment  of  a  statute  the 
right  to  question  it  in  court  by  reason  of  the  alleged 
violation  of  any  of  these  provisions,  and  a  like  limitation 
should  be  applied  to  procedural  requirements.  The 
dangers  against  which  the  constitution  desires  to  guard 
in  formal  and  procedural  requirements  are  necessarily  of 
a  transitory  or  ephemeral  nature,  which  by  the  lapse  of 
time  become  substanceless.  If  interests  are  prejudiced 


CONSTITUTIONAL  PROVISIONS  157 

by  precipitate  haste,  surprise,  or  logrolling,  a  reason- 
able chance  should  be  given  them  to  attack  the  law. 
After  that  chance  has  been  given  and  no  one  has 
availed  himself  of  it,  the  violated  constitutional  pro- 
vision becomes  merely  a  technical  loophole  of  escape 
from  the  law,  and  the  constitution  makes  it  possible, 
not  to  protect  legitimate  interests,  but  to  defeat  the 
legislative  will. 

Substantive  limitations. — Restrictions  upon  local  in- 
debtedness are  commonly  found  and  are  sound  hi  sub- 
stance, but  they  have  been  framed  without  sufficient 
flexibility  and  have  had  to  be  aided  by  judicial  con- 
struction; those  upon  state  indebtedness  have  given  rise 
to  no  difficulty.  The  common  policy  of  a  hard-and-fast 
constitutional  rule  of  equal  and  uniform  taxation  of 
property,  conceived  in  the  dominant  spirit  of  democratic 
equality,  has  proved  a  hindrance  to  the  development  of 
sound  revenue  policies. 

Unqualified  praise,  on  the  other  hand,  may  be  given 
to  the  practical  abrogation  of  private  and  special  legis- 
lation, and  although  the  attempt  to  secure  absolute 
uniformity  of  local  legislation  has  not  proved  equally 
successful  (as  the  experience  of  Ohio  and  Illinois  has 
shown),  the  benefit  of  these  restrictions,  has  greatly 
outweighed  their  occasional  inconveniences,  caused  in 
the  main  by  the  problem  of  the  metropolitan  city,  which 
modern  constitutions  attempt  to  deal  with  by  a  policy  of 
constitutional  home  rule.1 

1  California,  Minnesota,  Missouri,  Oklahoma,  Washington,  Ohio. 


158  STANDARDS  OF  AMERICAN  LEGISLATION 

Even  those  of  the  nineteenth-century  constitutional 
limitations  which  have  outlived  their  usefulness,  or 
which  hi  the  light  of  later  experience  should  be  revised, 
formed  at  the  time  when  they  were  first  enacted  valuable 
correctives  of  notorious  legislative  abuses.  While  differ- 
ing from  the  more  fundamental  guaranties  that  originated 
in  an  earlier  period,  they  had  this  in  common  with  them, 
that  in  either  case  the  danger  aimed  at  was  the  misuse 
of  governmental  power  and  the  remedy  applied  a  mere 
inhibition  of  governmental  action. 

Humanitarian  provisions. — A  more  constructive  tend- 
ency, however,  makes  itself  felt  as  constitution-making 
progresses.  This  divides  itself  somewhat  unequally 
between  two  classes  of  provisions :  those  which  represent 
advanced  human  or  social  standards,  and  those  which 
reflect  a  popular  apprehension  of  dangers  that  lurk  in 
the  abuse  of  private  action,  and  which  consequently  seek 
primarily  to  curb  social  and  economic  tendencies  and 
not  an  excess  of  governmental  power. 

Education,  penal  reform,  the  abolition  of  imprison- 
ment for  debt,  the  emancipation  of  married  women,  and, 
latterly,  the  rights  of  labor,  are  the  chief  topics  of  the 
" humanitarian"  provisions.  With  regard  to  the  first 
two,  the  constitutions  are  hardly  in  a  position  to  give 
more  than  expressions  of  policy.  The  provisions  against 
imprisonment  for  debt  are  generally  self-executing,  and 
in  a  few  cases  the  constitution  has  by  its  own  force  done 
away  with  the  disabilities  of  the  marriage  status.  The 
provisions  on  behalf  of  labor  are  relatively  meager  and 


CONSTITUTIONAL  PROVISIONS  159 

would  make  a  very  poor  charter  or  program  of  labor 
legislation;  there  is  not  even  a  happily  worded  phrase 
that  would,  as  in  the  case  of  education,  emphasize  the 
leading  thought  that  should  guide  legislative  policy.  The 
significant  thing  about  these  humanitarian  provisions  is 
not  their  achievement,  but  the  fact  that  new  impulses  and 
aspirations  demanded  and  found  recognition,  though  of 
the  most  perfunctory  kind,  in  the  organic  law  of  the  state. 

Social  and  economic  policies. — It  is  instructive  to 
compare  with  them  in  this  respect  the  restrictive  pro- 
visions of  a  social  or  economic  character.  Of  the  social 
policies,  those  against  lotteries  and  intoxicating  liquors 
are  the  most  conspicuous;  of  the  economic  polices,  those 
concerning  corporations,  and  particularly  banks  and 
railroads. 

Since  lotteries  were  operated  only  by  specific  legis- 
lative authority,  it  was  only  natural  that  they  should 
have  been  combated  by  constitutional  limitations  upon 
legislative  action,  and  from  1821  on,  when  it  first  appears 
in  New  York,  the  constitutional  prohibition  of  lottery 
charters  and  lotteries  is  common.  Liquor  clauses  in  the 
constitutions  are  few,  and  they  also  present  the  excep- 
tional instance  of  the  organic  law  being  used  to  place  a 
controverted  policy  beyond  the  reach  of  shifting  majorities 
in  the  legislature.  Ohio  and  Michigan  undertook  to 
place  a  constitutional  ban  on  licenses  without  suppressing 
the  business  entirely;  hi  Michigan  the  provision  was 
abrogated  in  1875;  and  while  in  Ohio  it  lingered  until 
1912,  it  was  evaded  by  ingenious  legislative  devices,  and 


160  STANDARDS  OF  AMERICAN  LEGISLATION 

there  can  be  no  doubt  that  in  both  states  the  undertaking 
to  formulate  in  the  constitution  a  policy  falling  short  of 
absolute  prohibition  was  recognized  as  a  failure. 

The  practice  of  special  legislative  authorization  of 
important  financial  or  industrial  enterprises  to  be  carried 
on  in  corporate  form  was  also  (as  in  the  case  of  lotteries) 
originally  responsible  for  the  attempt  to  frame  economic 
policies  in  the  form  of  constitutional  limitations.  As 
objects  of  popular  distrust  or  animosity  banks  in  the 
earlier  part  of  the  nineteenth  century  held  the  position 
now  occupied  by  railroads,  although  then  as  now  the 
solicitude  of  constitutional  conventions  extended  to  cor- 
porations in  general.  The  problem  to  be  solved  was  not, 
however,  the  simple  one  presented  by  the  abuse  of  lottery 
charters. 

When  banks  became  the  object  of  constitutional 
provisions — first  in  Indiana  in  1816 — the  initial  policy 
was  likewise  one  of  prohibition  pure  and  simple;  but 
this  policy  did  not  stand  the  test  of  practical  experience, 
and  courts  construed  the  prohibition  to  refer  to  banks  of 
issue  only.1  Even  with  this  restricted  interpretation, 
the  prohibition  proved  inconvenient,  and  ten  years' 
experience  with  this  regime  led  in  Iowa  to  a  demand  for 
a  constitutional  revision,2  while  in  other  states  the  pro- 

1  With  regard  to  the  apparent  prohibition  in  the  constitution  of  Oregon, 
see  8  Ore.  396;  California:  52  Cal.  196;  105  Cal.  376. 

1  See  Clayton  v.  Allen,  63  Iowa  n.  A  member  of  the  constitutional  con- 
vention of  1857  remarked:  "There  are  but  few  gentlemen  on  the  floor  who 
will  not  admit  that  we  were  sent  here  for  the  purpose  of  removing  from  our 
constitution  the  prohibition  against  banking." 


CONSTITUTIONAL  PROVISIONS  161 

hibition  gave  a  monopoly  to  already  established  banks 
(so  in  Florida).  Eventually  the  federal  tax  on  bank 
notes  rendered  further  prohibitions  of  banks  of  issue 
superfluous  and  those  previously  enacted  objectless. 

With  regard  to  railroads,  a  policy  of  prohibition  was 
of  course  out  of  the  question.  Both  the  universal  desire 
for  railroad  expansion  and  the  difficulties  of  railroad 
control  kept  the  subject  practically  out  of  the  constitutions 
until  Illinois  in  1870  established  a  new  precedent  hi  this 
field. 

If  the  simple  negatives  of  bills  of  rights  were  not 
available  in  dealing  with  capitalistic  undertakings  that 
performed  essential  economic  functions  which  the  state 
was  unwilling  to  assume  or  incapable  of  carrying  out, 
how  did  the  constitutions  adjust  themselves  to  the  more 
complex  demands  of  regulative  policies?  Lawmaking 
through  the  constitution  here  encountered  a  new  test. 

There  were  in  the  first  place  the  limitations  upon  the 
manner  of  granting  corporate  charters,  particularly  the 
prohibition  of  special  legislation  for  that  purpose.  This 
indirect  method  of  control  was  of  considerable  value  in 
removing  abuses  and  even  in  compelling  improvements 
in  the  substance  of  legislation.  It  is  found  in  some  of 
the  foremost  states :  in  New  York,  where  the  prohibition 
was  not  made  absolute  except  with  regard  to  banks 
(special  charters  being  allowed  for  other  corporations 
where,  in  the  judgment  of  the  legislature,  the  objects  of 
the  corporation  cannot  be  obtained  under  general  laws), 
this  qualified  constitutional  injunction  was  sufficient  to 


162  STANDARDS  OF  AMERICAN  LEGISLATION 

secure  the  enactment  of  the  first  important  general  rail- 
road incorporation  law,  which  has  since  served  as  a  model 
for  other  states.  No  state,  having  once  adopted  the 
policy  of  forbidding  special  charters  for  private  cor- 
porations, has  found  it  necessary  to  recede  from  it, 
whereas  experience  has  shown  that  a  faithful  adher- 
ence to  a  similar  policy  in  the  organization  of  munici- 
palities or  in  the  grant  of  municipal  powers  is  almost 
impossible. 

Banks. — The  strong  feeling  aroused  by  "wild  cat" 
banking  was  responsible  for  another  procedural  limitation 
peculiar  to  banking  laws,  namely,  the  requirement  of 
their  submission  to  popular  vote.  The  states  of  Illinois, 
Wisconsin,  Michigan,  Ohio,  Iowa,  Kansas,  and  Missouri 
placed  this  supposed  safeguard  in  their  constitution. 
In  Iowa  (103  Iowa  549),  Kansas  (20  Kan.  440),  Illinois 
(under  the  constitution  of  1848,  93  111.  191),  and  Ohio 
(42  Ohio  St.  196)  the  requirement  was  construed  to 
apply  to  banks  of  issue  only;  hi  Ohio,  Michigan,  and 
Wisconsin  it  has  been  removed  by  constitutional  amend- 
ment. It  is  true  that  in  Illinois  the  constitution  of  1870 
made  the  requirement  explicitly  applicable  to  all  banks, 
whether  of  issue,  deposit,  or  discount.  Notwithstanding 
this  isolated  case  of  extension,  it  is  clear  that  the  referen- 
dum on  banking  laws  has  been  found,  not  merely  not  to 
serve  any  valuable  purpose,  but  to  produce  considerable 
inconvenience;  since  1875  no  constitution  has  adopted 
it,  and  public  opinion  would  at  the  present  time  be 
unfriendly  to  it  everywhere — one  of  the  instances  in 


CONSTITUTIONAL  PROVISIONS  163 

which  a  constitutional  experiment  has  proved  a  mistake 
and  the  mistake  has  been  recognized. 

Of  much  greater  interest  are  the  constitutional  pro- 
visions specifying  the  conditions  to  be  observed  in  the 
exercise  of  banking  powers,  for  here  we  find  the  first 
attempt  to  formulate  positive  and  definite  principles  of 
legislation  through  the  constitution. 

The  general  banking  law  of  New  York — the  model  for 
all  subsequent  American  banking  legislation — was  enacted 
in  April,  1838;  in  December  of  the  same  year  a  consti- 
tutional convention  met  in  Florida,  which  framed  and 
adopted  a  constitution  that  became  effective  when  the 
state  was  admitted  in  1845. 

This  constitution  has  an  elaborate  article  on  banking. 
Since  it  confines  banks  to  the  business  of  exchange, 
discount,  and  deposit,  the  safeguards  prescribed  by  the 
law  of  New  York  for  the  issue  of  bank  notes  were  naturally 
omitted;  otherwise,  however,  the  article  contains  every 
important  provision  of  a  banking  law  and  constitutes  a 
tolerably  complete  code  of  sound  banking  principles  as 
understood  at  that  time:  the  requirement  of  a  specific 
sum  in  specie  as  capital;  the  prohibition  of  certain  kinds 
of  business  and  transactions  regarded  as  unsafe;  limitation 
on  liabilities  to  be  incurred;  limitation  on  dividends; 
provision  for  inspection  and  reports. 

The  practice  of  making  the  constitution  perform  the 
office  of  a  statute  is  here  and  at  this  early  date  perhaps 
more  strikingly  exemplified  than  in  any  other  American 
constitution,  not  excepting  the  corporation  article  of  the 


164  STANDARDS  OF  AMERICAN  LEGISLATION 

constitution  of  Oklahoma;  indeed,  Florida  seems  to  have 
regarded  the  constitutional  article  quite  adequate  as  a 
banking  law,  for  the  early  session  laws  show  no  other 
banking  legislation.1 

Although  perhaps  not  quite  in  so  pronounced  a 
statutory  form,  the  banking  articles  of  nearly  all  the 
constitutions  from  about  1840  for  a  considerable  period 
onward  lay  down  principles  of  banking  legislation: 
forbidding  the  suspension  of  specie  payments  by  banks 
of  issue;  prescribing  the  registration  of  circulating  bills 
or  notes,  and  the  method  of  securing  their  redemption; 
creating  a  special  individual  liability  of  shareholders, 
making  billholders  preferred  creditors,  and  requiring  the 
registration  of  stockholders  and  their  holdings  and  of  the 
transfer  of  stock.  With  one  exception  these  principles, 
even  if  not  expressed  in  mandatory  language  (the  more 
recent  constitutions  are  more  careful  in  this  respect;  see, 
e.g.,  Alabama,  1901,  sec.  248),  have  been  readily 
acquiesced  in;  the  one  exception  is  the  special  share- 
holder's liability.  Though  subsequently  adopted  for 
national  banks,  and  in  New  York  extended  by  the 
constitution  of  1894  (art.  8,  sec.  7)  from  banks  of  issue 
to  other  banks,  this  provision  appears  to  have  encountered 
much  opposition :  in  Kansas  (61  Kan.  869)  and  California 
(24  Cal.  518)  it  was  held  inoperative  without  appropriate 
legislation  (Thompson  on  Corporations,  sees.  3000-3007) ; 

1 A  banking  law  was  enacted,  however,  in  1852  purporting  to  give  power 
to  issue  notes  to  circulate  as  money — on  what  theory,  in  view  of  the  constitu- 
tional restriction  of  banking  charters,  it  is  impossible  to  say.  As  far  as  the 
reports  show,  the  act  was  not  passed  upon  judicially. 


CONSTITUTIONAL  PROVISIONS  165 

in  Iowa  (63  Iowa  n)  it  was  by  construction  limited  to 
banks  of  issue,  and  in  Missouri  it  has  been  abrogated  by 
constitutional  amendment. 

Railroads. — As  pointed  out  before,  railroads  as  such 
did  not  become  conspicuous  subjects  of  constitutional 
enactment  until  1870.  Earlier  constitutions  in  throwing 
restrictions  around  the  grant  of  public  subsidies  to  private 
corporations  did  not  mention  railroad  companies  specifi- 
cally, nor  did  these  prohibitions  become  absolute  until 
the  same  year.  In  1870  Illinois  made  railroads  (in 
conjunction  with  warehouses)  the  subject  of  a  separate 
article  in  her  new  constitution,  and  from  that  tune  on 
they  nearly  always  figure  prominently  in  constitutional 
revisions  or  in  new  constitutions  (see,  e.g.,  West  Virginia, 
1872;  Pennsylvania,  1873;  Texas,  1876;  California, 
1879). 

Leaving  aside  restraints  on  special  charter  legislation 
and  on  public  grants  in  aid,  which  are  not  confined  to 
railroad  companies,  the  constitutional  provisions  relate 
to  certain  facilities  for  public  control  (maintenance  of 
public  office,  registry  of  shareholders,  annual  reports  of 
railroad  or  corporation  commissions),  to  reciprocal 
relations  between  roads  (right  to  physical  connections 
and  to  connecting  business,  non-discrimination  in  relation 
to  other  lines,  prohibition  of  consolidation  between 
parallel  or  competing  lines),  to  service  of  public  (power  or 
duty  to  regulate  rates,  non-discrimination,  liability  of 
common  carriers),  to  certain  abusive  or  corrupt  practices 
(free  passes,  contracts  with  directors),  and  in  more  recent 


166  STANDARDS  OF  AMERICAN  LEGISLATION 

times  to  rights  of  employees  (fellow-servant  doctrine, 
etc.).  The  most  important  of  these  appeared  in  the 
constitution  of  Illinois  of  1870,  and  Pennsylvania  in  1873 
covered  practically  all  the  points  except  the  power  to  fix 
rates,  which  that  state  did  not  until  1913  assume  to  exer- 
cise by  general  legislation.  Almost  from  the  beginning, 
therefore,  the  constitutional  provisions  in  the  matter  of 
railroads  had  attained  their  full  development.  The  most 
conspicuous  phases  of  public  control  and  restraint  which 
they  recognized  had  been  previously  established  in  New 
York  and  in  Massachusetts  by  legislation  (right  to 
connections,  New  York,  1847,  1867;  non-consolidation  of 
competing  lines,  New  York,  1869;  non-discrimination, 
Massachusetts,  1869).  These  two  states  never  found  it 
necessary  to  resort  to  the  constitution  to  fix  their  policy 
of  railroad  regulation,  while  in  Pennsylvania  not  even 
the  constitution  succeeded  in  introducing  the  policy  of 
rate  regulation,  which  in  New  York  (1848)  and  Illinois 
(1849)  had  received  formal  statutory  recognition  before 
1850.  The  most  effectual  weapon  of  state  control — the 
establishment  of  railroad  commissions — not  only  likewise 
originated  in  legislation  (Massachusetts,  1869;  Illinois, 
1872),  but  has  found  its  way  into  relatively  few  consti- 
tutions (California,  1879;  Kentucky,  1891;  Louisiana, 
1898;  South  Carolina,  1895;  Virginia,  1902;  Oklahoma, 
1907). 

The  important  subjects  of  railroad  finance,  safety, 
and  liability  to  users  and  to  the  public  figure  slightly,  if 
at  all,  in  the  constitutions,  although  they  are  prominent 


CONSTITUTIONAL  PROVISIONS  167 

subjects  of  legislation;  vague  phrases,  such  as  that 
railroads  are  highways  and  the  companies  common 
carriers,  have  to  serve  in  lieu  of  more  definite  principles. 
The  constitutions  vary,  and  apparently  pursue  no  clear 
policy,  whether  to  make  their  provisions  self-executing, 
or  depending  upon  legislation;  the  directory  formulation 
is  as  common  as  the  mandatory.  Where  the  constitu- 
tional provision  merely  expressed  a  generally  recognized 
policy,  the  readiness  of  legislatures  to  comply  with 
constitutional  mandates  made  the  difference  rather 
irrelevant;  where,  on  the  other  hand,  the  carrying  out  of 
a  policy  encountered  great  practical  difficulty,  as  in  the 
regulation  of  freight  rates,  it  was  of  no  avail  that  a 
constitutional  direction  was  added  to  ineffective  statutory 
clauses,  as  was  done  hi  Illinois  in  1870. 

Altogether,  the  very  considerable  bulk  of  railroad 
legislation  in  the  constitutions  carries  public  control  very 
little  beyond  the  point  reached  by  uncoerced  statutory 
legislation,  and  the  slight  impress  left  by  the  constitutional 
provisions  upon  judicial  decisions  shows  how  little 
occasion  there  has  been  to  rely  upon  the  superior  sanc- 
tion of  the  constitutional  prohibition  or  command.  The 
railroad  provisions  in  the  constitutions  apparently  rep- 
resented less  of  controverted  "issues"  than  did  those 
regarding  banks. 

Corporations  in  general. — The  first  constitution  of 
Ohio,  of  1802,  contained  a  somewhat  remarkable  pro- 
vision (VIII,  27),  that  every  association  of  persons  should 
on  application  to  the  legislature  be  entitled  to  receive 


l68  STANDARDS  OF  AMERICAN  LEGISLATION 

letters  of  incorporation,  separate  legislative  action  for 
each  particular  case  being  apparently  regarded  as  indis- 
pensable. The  idea  of  general  incorporation  laws  did  not 
become  familiar  until  later  on,  and  it  was  not  until  the 
end  of  the  thirties  (Florida,  1838)  that  the  prohibition 
of  special  charter  grants  was  introduced  into  the  con- 
stitutions. Florida  added  to  her  elaborate  article  on 
banks  one  that  was  also  exceptionally  full  on  corporations, 
requiring  for  incorporation  laws  public  notice1  and  a 
two-thirds  vote,  limiting  the  duration  of  special  privi- 
leges to  twenty  years,  fixing  causes  of  forfeiture  and 
authorizing  a  summary  process  of  revocation,  forbid- 
ding the  restoration  of  forfeited  charters,  and  prohibiting 
the  state  from  pledging  its  credit  for  a  corporation.  The 
provision  for  a  two-thirds  vote  on  charter  bills  had  even 
before  that  time  been  incorporated  in  the  constitution  of 
Michigan  (1835). 

Florida's  example  was  not  at  once  followed  by  other 
states;  the  constitutions  confine  themselves  for  a  con- 
siderable time  to  the  prohibition  of  special  charter 
grants  and  of  state  participation  in  private  corporate 
enterprise  (so  Iowa,  1846).  Otherwise  the  constitu- 
tions of  the  period  concern  themselves  only  with 
banking  corporations,  and  these  occupy  the  principal 
place  in  the  articles  headed  "Corporations"  which 
begin  to  appear  about  the  middle  of  the  century. 

1  Rhode  Island,  1842,  required  a  bill  for  a  corporate  charter  to  be  con- 
tinued to  the  next  legislature. 


CONSTITUTIONAL  PROVISIONS  169 

Gradually  the  provisions  regarding  corporations  expand, 
and  at  present  a  separate  article  dealing  with  the  subject 
is  the  rule. 

The  primary  object  of  constitutional  provisions  seems 
to  be  to  guard  the  fulness  of  state  control  over  corpora- 
tions: the  right  to  alter  and  amend  charters  is  reserved; 
in  order  to  extend  the  power  to  previously  granted 
charters,  corporations  are  required  to  accept  the  consti- 
tution before  they  receive  the  benefit  of  any  amendments 
to  their  charters;  charters  are  invalidated  unless  acted 
upon  within  a  specified  time,  and  corporations  are  declared 
to  be  subject  to  the  police  power  of  the  state.1  The 
provisions  regarding  foreign  corporations,  and  particularly 
the  requirement  that  the  corporation  keep  an  office  or 
agents  in  the  state,  serve  the  same  end.  The  "last  word " 
in  asserting  state  control  is  of  course  the  creation  of  a 
corporation  commission  by  the  constitution  itself,  which 
we  find  hi  Virginia  and  Oklahoma — another  illustration 
of  the  tendency  to  lay  the  mam  stress  upon  the  machinery 
of  state  control  rather  than  upon  giving  a  particular 
direction  to  its  policy. 

As  regards  corporate  organization,  powers,  relations, 
and  liabilities,  it  is  not  easy  to  discover  uniformity  or 
definite  lines  of  policy  in  constitutional  provisions. 
Most  common  is  the  injunction  restraining  corporations 
to  the  business  specified  in  their  charters;  the  correlative 

1  Some  of  these  provisions  render  it  impossible  to  secure  to  a  corporation 
the  right  to  charge  fixed  rates  on  a  contractual  basis. 


170  STANDARDS  OF  AMERICAN  LEGISLATION 

and  equally  important  prohibition  against  accomplishing 
the  forbidden  object  by  holding  stock  in  other  corporations 
is  found  only  in  Georgia  and  Oklahoma;  and  the  scarcity 
of  provisions  regarding  real  estate  holdings  by  corporations 
seems  to  show  that  mortmain  policies  have  at  any  rate 
not  made  a  very  strong  appeal  to  popular  sentiment  or 
imagination. 

A  number  of  state  constitutions  undertake  to  guard 
against  the  issue  of  fictitious  stock  or  the  fraudulent 
creation  of  indebtedness;  the  requirements  as  to  payment 
for  stock  are,  however,  of  the  most  perfunctory  kind,  and 
in  the  absence  of  supplementary  legislation  have  accom- 
plished little. 

A  great  many  state  constitutions  have  something  to 
say  on  shareholders'  liability,  some  (Oregon,  Nevada, 
Nebraska,  West  Virginia,  Ohio,)  expressly  excluding  in- 
dividual liability,  some,  on  the  contrary,  extending  from 
banks  to  other  corporations  the  personal  liability  to  the 
amount  of  and  in  addition  to  the  stock  held,  or 
(California)  establishing  a  rule  of  proportionate  liability, 
while  still  others  leave  the  matters  expressly  to  legislation. 
In  California  (24  Cal.  587),  Kansas  (61  Kan.  569),  and 
Missouri  (79  Mo.  148)  these  provisions  were,  however, 
held  by  the  courts  to  be  inoperative  without  legislation, 
and  in  Minnesota,  Ohio,  and  Kansas  the  additional 
shareholders'  liability  was  abrogated  by  constitutional 
amendment  altogether  or  for  certain  classes  of  corpora- 
tions. It  is  obviously  impossible  here  to  speak  of  clear 
or  uniform  policies. 


CONSTITUTIONAL  PROVISIONS  171 

In  those  of  the  recent  constitutions  which  reflect  most 
strongly  the  demand  for  a  direct  expression  of  the  popular 
will,  the  public-service  corporation  appears  as  the  object 
of  special  solicitude  and  the  corporation  commission  as 
the  instrument  to  enforce  the  constitutional  policies.  In 
Oklahoma,  not  merely  is  the  article  on  corporations  twice 
as  long  as  that  on  the  legislature,  but  there  are  separate 
articles  on  banking,  insurance,  manufactures  and  com- 
merce, corporate  ownership  of  land,  and  a  number  of 
provisions  protecting  the  interests  of  labor.  The  statu- 
tory character  of  many  of  the  rules  is  indicated  by  the 
fact  that  they  are  made  subject  to  change  by  ordinary 
legislation — a  new  form  of  compromise  between  consti- 
tutional and  statutory  lawmaking.  The  most  interesting 
addition  to  constitutionally  fixed  policies  is  that  against 
local  price  discriminations  in  the  sale  of  articles  of  general 
use  (Okla.  IX,  46). 

Effect  of  constitutional  policies. — If  we  accept  the 
articles  on  corporations,  banks,  and  railroads  as  repre- 
senting the  most  persistent  attempt  to  assert  popular 
control  over  economic  factors  directly  through  the 
fundamental  law,  we  are  naturally  led  to  inquire  what 
measure  of  success  has  attended  the  undertaking. 

Is  there  any  evidence  to  show  that  constitutions  have 
thwarted  or  resisted  legislative  tendencies  or  policies 
unduly  favorable  to  powerful  capitalistic  interests,  or 
that  they  have  inaugurated  new  policies  that  had  to 
be  forced  upon  the  legislatures  by  a  direct  popular 
mandate  ? 


172  STANDARDS  OF  AMERICAN  LEGISLATION 

If  such  was  the  purpose  and  effect  of  the  movement, 
it  is  not  susceptible  of  demonstration.  The  nature  of 
the  source  material  in  constitutional  and  statutory  his- 
tory is  such  that  as  a  rule  no  record  evidence  is  available 
to  trace  causes  and  factors.1  It  is  safest  to  draw  conclu- 
sions from  the  internal  evidence  afforded  by  the  constitu- 
tions themselves,  the  statutes,  and  the  judicial  decisions. 

A  number  of  points  strongly  impress  themselves  upon 
the  mind. 

The  constitutions  as  a  rule  do  not  inaugurate,  but 
merely  register  previously  established,  legislative  policies; 
the  exceptions  prove  the  rule.  Such  an  exception  may 
perhaps  be  found  in  the  railroad-control  policy  formulated 
in  the  Pennsylvania  constitution  of  1873,  but  the  novelty 
lay  in  such  minor  points  as  free  passes  and  semi-corrupt 
directors'  contracts,  while  the  fundamental  principle  of 
rate-regulating  power  was  kept  out  of  the  constitution  as 
it  was  kept  out  of  the  statute  book. 

The  constitutions  evince  no  particular  care  in  the 
choice  of  the  language  which  controls  the  operation  of  a 
provision,  whether  self-executing  or  dependent  on  legis- 

1  Mr.  Thorpe,  in  his  Constitutional  History  of  the  American  People,  1776- 
1850  (New  York,  1898,  2  vols.),  has  analyzed  with  considerable  care  the 
debates  upon  a  number  of  important  issues  in  the  constitutional  conventions 
of  Louisiana,  1845  (*>  400-486),  of  Kentucky,  1849  (H>  I-I82),  of  Michigan, 
1850  (II,  183-286),  and  of  California,  1849  (H>  287-394).  Every  reader  must 
be  impressed  with  the  desultory  and  frequently  superficial  character  of  argu- 
ment and  discussion.  The  same  impression  is  created  by  a  perusal  of  the 
debates  of  the  New  York  constitutional  convention  of  1846,  or  of  the  account 
of  other  debates  in  Lincoln's  Constitutional  History  of  New  York.  Committee 
debates  may  have  been  more  thorough  and  instructive,  but  we  have  no  records 
of  these. 


CONSTITUTIONAL  PROVISIONS  173 

lation;  but  since  the  legislatures  were  as  a  rule  quite 
ready  to  carry  out  the  constitutional  mandate,  this 
indifference  did  little  harm.  It  has  been  said  that  courts 
have  been  unduly  inclined  to  treat  provisions  as  not 
self -executing;1  but  the  reason  has  generally  been  that 
the  constitutional  provision  was  too  vague  to  afford  a 
definite  rule  of  decision;  and  where  the  legislature  con- 
tented itself  with  reproducing  the  clause  of  the  constitu- 
tion in  statutory  form,  difficult  questions  of  construction 
were  sure  to  arise  (see  as  to  fictitious  stock  issues  96  Ala. 
238,  250;  168  Mo.  316,  330;  206  Pa.  488). 

Where  constitutional  conventions  have  been  con- 
fronted by  legislative  abuses  or  unfortunate  results  of 
legislative  experiments,  the  reaction  not  uncommonly 
transcended  the  bonds  of  statesmanlike  circumspection 
and  foresight.  A  number  of  states  undertook  apparently 
to  prohibit  banking  corporations  absolutely;  the  courts 
had  to  construe  this  as  applying  to  banks  of  issue  only; 
even  in  that  restriction  the  policy  proved  unworkable  in 
some  states,  and  was  saved  in  others  only  by  the  appear- 
ance of  national  bank  legislation. 

Similarly,  the  absolute  limitation  of  corporate  charters 
to  a  relatively  short  period  of  years  was  an  untenable 
measure:  as  soon  as  the  Supreme  Court  of  Michigan 
decided  that  the  prohibition  covered  extensions  of 
charters,  the  clause  in  question  was  amended  (art.  XII, 
sec.  10,  of  constitution;  decision  73  Mich.  303,  310,  1889; 
amendment  same  year). 

2  Thompson  on  Corporations,  sees.  3000-3007. 


174  STANDARDS  OF  AMERICAN  LEGISLATION 

The  relative  scarcity  of  judicial  decisions  on  the  con- 
stitutional articles  in  question  is  characteristic.  It  in- 
dicates to  a  certain  extent  the  entire  agreement  between 
legislative  and  constitutional  policy;  to  some  extent  it  is 
also  due  to  the  general,  if  not  ambiguous,  form  of  some 
of  the  provisions  which  left  the  legislature  a  very  free 
hand.  In  a  few  cases  judicial  interpretation  has  solved 
apparent  conflict  between  legislation  and  constitutional 
provision,  while  in  others  judicial  enforcement  led  to 
constitutional  amendment.  The  judicial  history  of  this 
phase  of  our  constitutional  law  is  meager  and  singularly 
unilluminating. 

Only  two  of  the  clauses  stand  out  as  important 
additions  to  the  principles  of  our  public  law:  the  pro- 
hibition of  special  legislation  and  the  prohibition  of 
public  aid  to  private  corporate  enterprise.1  In  both 
these  matters  the  constitutions  performed  their  legitimate 
function  of  checking  strong  legislative  tendencies  with 
which  statute  law  was  unable  to  cope,  and  the  policies 
thus  enforced  have  been  unqualifiedly  beneficial  and 
probably  constitute  the  most  important  achievements  of 
American  public  policy  in  dealing  with  private  enterprise. 

It  would,  however,  be  a  mistake  to  measure  the 
significance  of  the  other  corporation  clauses  of  the 

1  At  least  three-fourths  of  the  states  have  constitutional  provisions  designed 
to  prohibit  or  check  the  practice.  No  state  that  has  once  adopted  the  policy 
of  prohibiting  such  aid  has  abandoned  it;  in  Michigan  the  constitutional  con- 
vention of  1867  by  a  small  majority  adopted  a  provision  allowing  public  aid  to 
railroad  companies,  which  was  much  desired  by  the  Northern  Peninsula;  the 
proposed  constitution  was  rejected,  however,  by  the  people,  largely,  it  is  said, 
on  account  of  this  provision  (Utley,  History  of  Michigan,  II,  36). 


CONSTITUTIONAL  PROVISIONS  175 

constitutions  by  what  they  have  actually  achieved. 
Irrespective  of  success  and  failure,  the  mere  fact  of 
activity  and  the  bulk  of  the  product  must  arrest  the 
attention  of  every  student  of  constitutional  history. 
From  the  second  third  of  the  nineteenth  century  on 
there  has  hardly  been  a  constitutional  convention  that 
has  not  attempted  to  formulate  economic  policies  and 
to  deal  directly  through  the  organic  law  with  some 
of  the  conspicuous  factors  of  this  economic  life  of 
the  people.1  And  while  there  has  been  much  per- 
functory and  thoughtless  borrowing  and  reiteration, 
there  has  also  been  considerable  change,  and  above 
all  constant  addition  and  a  slow  advance  in  the  range 
of  interests  subjected  to  the  constitution  and  in  the 
methods  of  handling  them.  Experience  may  show 
that  the  constitution  by  its  very  nature  cannot  be 
made  to  serve  as  an  adequate  instrument  of  fixing 
means  and  methods  of  checking  and  curbing  abuses 
and  transgressions  of  corporate  enterprise.  There  can 
be  little  doubt  of  the  popular  desire  to  utilize  it  for 
that  purpose  to  its  utmost  capacity. 

CONSTITUTIONS  AND  FUNDAMENTAL  RIGHTS 

Having  thus  traced  the  growth  and  development  of 
the  constitutional  provisions  directed  against  the  danger 
threatening  from  the  abuse  of  private  and  particularly 

1  New  York,  1894,  constitutes  a  striking  exception.  There  are  only  two 
new  provisions  concerning  or  affecting  industrial  corporations:  the  abrogation 
of  the  limitation  of  amount  recoverable  for  wrongful  death,  and  the  extension  of 
shareholders'  liability  to  other  banking  corporations  than  banks  of  issue. 


176  STANDARDS  OF  AMERICAN  LEGISLATION 

of  corporate  action,  it  is  instructive  to  turn  back  to  the 
original  stock  of  clauses  to  which  we  look  for  the  recog- 
nition of  the  claims  of  private  right  in  the  ordering  of  civil 
relations.  Does  the  formulation  of  checks  and  limitations 
keep  even  pace  with  the  enlargement  of  public  activities 
and  of  public  control  ? 

Undeniably  there  has  been  enlargement  at  some  points. 
Thus  the  guaranties  of  freedom  of  religion  and  separation 
of  church  and  state  have  been  strengthened  in  the  course 
of  the  nineteenth  century.  Pennsylvania  in  1776  re- 
quired of  members  of  the  legislature  a  declaration  of  the 
belief  in  God  and  the  inspiration  of  the  Scriptures; 
South  Carolina  hi  1778  declared  the  Christian  Protes- 
tant religion  to  be  the  established  religion  of  the  state; 
Mississippi  in  1817  and  Arkansas  in  1834  debarred  from 
office  those  who  denied  God  or  a  future  state,  and  Con- 
necticut in  1818  recognized  equality  only  for  all  denomi- 
nations of  Christians;  these  clauses  have  disappeared. 
And  the  First  Amendment  to  the  federal  Constitution, 
forbidding  Congress  to  establish  a  religion  or  to  prohibit 
the  free  exercise  thereof,  falls  short  of  the  full  declaration 
of  the  constitution  of  Illinois  of  1870  proclaiming,  in 
addition  to  freedom,  also  equality,  the  independence  of 
civil  rights  from  religious  belief,  and  the  principle  of  non- 
compulsion  in  the  matter  of  church  attendance  and 
support. 

The  freedom  of  speech  and  of  the  press  has  been 
somewhat  extended  by  cutting  off  the  qualifications  under 
which  alone  the  earlier  constitutions  made  the  truth 


CONSTITUTIONAL  PROVISIONS  177 

admissible  in  defense  to  a  prosecution  for  libel.1  Missis- 
sippi in  1817  and  Connecticut  in  1818  seems  to  have 
first  omitted  this  qualification.  It  was  only  by  the  con- 
stitution of  Pennsylvania  of  1873  that  the  defense  of  the 
qualified  privilege  of  good  faith  in  the  criticism  of  public 
officials  was  given  constitutional  recognition  for  criminal 
prosecutions,  irrespective  of  the  truth  of  the  publication. 

In  some  respects  the  right  to  compensation  in  the 
case  of  an  appropriation  to  public  use  has  been  made 
more  secure:  in  Indiana  we  find  it  extended  to  services; 
and  from  1870  on  the  damaging  of  property  is  coupled 
with  the  taking  of  it  in  guaranteeing  the  right  to  com- 
pensation. Although  these  guaranties  operate  now  per- 
haps more  frequently  against  corporations  exercising  the 
power  of  eminent  domain  than  against  the  state,  they 
constituted  in  their  inception  a  concession  made  by  public 
power  to  private  right. 

Certain  other  enlargements  of  private  right — the 
right  to  recover  unlimited  damages  in  case  of  wrongfully 
inflicted  death,  the  abrogation  of  the  fellow-servant 
doctrine,  and  the  protection  against  "contracting  out"  of 
strict  rules  of  employers'  liability — operated  from  the 
beginning  chiefly  against  the  corporations  which  are  the 
great  employers  of  labor. 

The  most  noteworthy  addition  to  fundamental  guar- 
anties is  to  be  found  in  the  equal-protection  clause  of  the 
Fourteenth  Amendment;  the  principle  of  equality,  so 

1  As  to  this  see  Schofield,  "Freedom  of  the  Press  in  the  United  States," 
Publications  of  the  American  Sociological  Society,  IX,  67,  79,  95. 


1 78  STANDARDS  OF  AMERICAN  LEGISLATION 

prominent  in  France,  had  been  theretofore  conspicuous 
rather  by  its  absence  in  American  constitutions,  or  had 
found  merely  an  indirect  and  incomplete  recognition  in 
the  prohibition  of  privileges  and  monopolies. 

On  the  other  hand,  the  enormous  growth  of  the 
exercise  of  the  police  power,  the  entirely  new  problems 
arising  out  of  corporate  personality  and  out  of  the 
relatively  new  concept  of  the  public-service  calling,  have 
hardly  called  forth  a  single  new  guaranty  of  private  right 
against  the  possible  abuse  of  public  power;  it  is  excep- 
tional that  the  reservation  of  the  power  to  revoke  cor- 
porate charters  is  qualified  by  a  direction  that  no  injustice 
be  done  to  the  shareholders  (Mississippi,  sec.  178). 

In  some  cases  concessions  made  to  the  defense  of 
private  right  are  subsequently  taken  back  or  qualified: 
in  1898  Louisiana  relieves  from  the  penalties  of  dis- 
obedience to  the  orders  of  the  Railroad  Commission 
pending  a  contest  of  the  validity  of  the  order  (sec.  286); 
in  1908  this  is  amended  by  providing  for  a  daily  penalty 
of  from  ten  to  fifty  dollars. 

In  the  constitutional  conventions  the  bill  of  rights  is 
never  a  prominent  subject  of  discussion,  and  only  now 
and  then  some  provision  is  considered  with  a  view  to  its 
possible  effect  upon  some  "live  issue."  Thus  in  Iowa  in 
1857  it  was  proposed  to  add  to  the  prohibition  of  laws 
impairing  the  obligation  of  contracts  that  of  laws  impair- 
ing rights  of  property.  A  debate  arose  on  the  effect  of 
such  prohibition  upon  liquor  legislation,  and  the  proposi- 
tion was  rejected.  In  the  same  convention  the  clause 


CONSTITUTIONAL  PROVISIONS  179 

regarding  the  security  against  unreasonable  searches  and 
seizures  was  amended  by  adding  to  papers  "persons,"  the 
change  being  due  to  a  desire  to  counteract  the  Fugitive 
Slave  Law.  At  one  stage  of  the  proceedings  it  was  sought 
to  make  all  privileges  and  immunities  revocable;  there- 
upon it  was  proposed  to  amend  by  giving  a  right  to 
damages  in  case  a  corporate  charter  should  be  taken 
away;  but  it  was  feared  that  this  would  authorize  suits 
against  the  state,  and  finally  all  these  propositions  were 
rejected.  The  phrase  "all  men  are  by  nature  free  and 
independent"  was  changed  to  "free  and  equal,"  the 
proposed  change  being  first  defeated  by  a  large  vote,  but 
finally  incorporated  in  the  report  of  the  final  special 
committee,  it  does  not  appear  why.  The  lack  of  the 
common  clause  against  self-crimination  was  supplied  on 
the  first  reading,  but  omitted  in  the  report  of  the  final 
committee,  which  was  adopted  without  debate.1 

Doubtless  the  examination  of  the  proceedings  of  other 
constitutional  conventions  would  reveal  similar  hap- 
hazard and  half-considered  actions;  and  caution  is 
clearly  necessary  in  drawing  inferences  from  the  mere 
fact  of  change.  This  would  apply,  for  instance,  to  the 
slight  changes  in  the  guaranty  of  jury  trial  in  the  con- 
stitutions of  Illinois.  The  constitutional  convention  of 
Ohio  of  1912  proposed  to  give  a  jury  trial  to  persons 
charged  with  the  violation  of  an  injunction  in  labor  dis- 
putes which  was  to  be  granted  only  for  the  preservation 

1 1  am  indebted  for  these  notes  on  the  Iowa  constitutional  convention  of 
1857  to  an  essay  written  by  Mr.  Worcester  Warren,  one  of  my  former  students. 


l8o  STANDARDS  OF  AMERICAN  LEGISLATION 

of  property.  This  was  the  only  "labor  provision"  that 
was  defeated  at  the  polls.  The  anomaly  is  explained  by 
the  fact  that  another  popular  provision  allowed  a  three- 
fourths  verdict  in  civil  cases,  and  that  the  labor  interests 
did  not  hope  for  more  than  three  labor  men  on  any  jury. 
No  amount  of  conjectural  reasoning  would  work  out  this 
explanation.  It  is  also  reasonably  clear  that  the  enlarge- 
ment of  the  right  to  jury  trial  demanded  in  connection 
with  the  exercise  of  contempt  jurisdiction  is  not  demanded 
as  an  additional  guaranty  of  private  right  and  justice, 
but  as  a  measure  of  protection  to  class  interests. 

Bills  of  rights  have  become  stationary  and,  relatively 
speaking,  retrogressive  parts  of  our  constitutions. 
Phrases  have  been  taken  over  from  historic  documents 
without  very  particular  attention  to  their  meaning  or 
significance.  The  term  "due  process  of  law"  is  not 
found  in  the  earliest  constitutions,  but  rather  the  terms 
"law  of  the  land,"  "standing  laws"  (taken  from  Locke); 
in  New  York  it  was  held  (20  Wendell  365)  that  its  intro- 
duction into  the  constitution  of  1821  enlarged  the  pro- 
tection of  private  right,  but  there  is  no  evidence  that 
that  was  the  purpose  of  the  convention.  The  opinions 
written  by  the  Supreme  Court  of  the  United  States  in  the 
Slaughter  House  cases  (16  Wallace  36)  in  1872  show  very 
clearly  that  the  members  of  that  court  did  not  realize  the 
far-reaching  effect  of  the  due-process  and  equal-protection 
clause  of  the  Fourteenth  Amendment,  and  while  a  few 
individuals  at  the  time  of  the  adoption  of  the  amendment 
may  have  foreseen  its  larger  implications,  the  general 


CONSTITUTIONAL  PROVISIONS  181 

opinion  was  undoubtedly  that  a  security  had  been  created 
mainly  to  prevent  oppression  of  a  particular  race. 

In  fulness  and  variety  of  provisions  the  earliest  of  the 
bills  of  rights,  the  Body  of  Liberties  of  Massachusetts,  of 
1641,  has  never  since  been  equaled;  it  is  the  only  one 
which  extends  the  guaranty  of  due  process  to  family 
rights,1  and  the  principle  of  equality  before  the  law  is 
likewise  more  adequately  expressed  than  in  most  of 
the  present  constitutions.3  Special  provisions  regarding 
liberties  of  women,  liberties  of  children,  liberties  of 
servants,  liberties  of  foreigners  and  strangers,  winding  up 
with  an  article  "of  the  brute  creature,"  give  evidence  of 
the  universal  range  of  its  thought,  and  there  is  nothing 
perfunctory  or  stereotyped  about  its  ninety-eight  clauses. 
The  "laws  agreed  upon  in  England  for  Pennsylvania"3 
likewise  evince  a  solicitude  for  individual  rights  unrivaled 
at  the  present  day. 

Some  of  the  earlier  guaranties  (right  of  migration  hi 
the  charter  of  Rhode  Island,  right  of  emigration  in 
Pennsylvania)  have  been  dropped,  and  such  an  essential 
political  right  as  that  of  association,  such  an  important 
economic  right  as  that  of  freedom  of  vocation,  has 
uniformly  been  left  without  recognition,  with  the  result 
that  the  enumeration  of  fundamental  rights  is  more 
complete  hi  Switzerland  than  it  is  hi  the  United  States. 

1  "No  man  shall  be  deprived  of  his  wife  and  children." 

2  "Every  person  within  this  jurisdiction,  whether  inhabitant  or  foreigner, 
shall  enjoy  the  same  justice  and  law  that  is  general  for  the  plantation,  which 
we  constitute  and  execute  one  towards  another  without  partiality  or  delay." 

3  Thorpe,  American  Constitutions,  p.  3059. 


182  STANDARDS  OF  AMERICAN  LEGISLATION 

Not  only  is  there  no  attempt  to  express  the  individualistic 
concept  of  society  or  the  permanence  of  the  institution 
of  property  with  its  essential  correlative  of  the  right 
of  testamentary  transmission,  but  not  even  the  idea  of 
vested  rights  has  been  formulated  or  developed.1  And 
while  there  have  been  at  least  rudimentary  attempts  to 
lay  down  general  principles  of  criminal  legislation,  as,  e.g., 
that  penalties  shall  be  proportionate  to  the  offense,  or 
that  the  penal  code  shall  be  based  on  principles  of  reforma- 
tion and  not  of  vindictive  justice  (Indiana,  1816,  IX,  4), 
no  constitution  has  ever  undertaken  to  formulate  any 
principle  of  justice  or  reasonableness  for  civil  or  public 
welfare  legislation,  although  the  enormous  development 
of  the  police  power  calls  urgently  for  some  authoritative 
adjustment  of  its  claims  to  the  claims  of  vested  rights. 
Even  with  regard  to  such  historic  rights  as  freedom  of 
speech  and  of  the  press,  the  bills  of  rights  have  not  kept 
pace  with  the  advance  of  public  opinion  as  expressed  in 
legislation  or  the  administration  of  justice;  the  law  of 
libel  is  more  liberal  than  the  constitutional  guaranty; 
Pennsylvania  even  now  restricts  the  constitutional  right 
to  hold  office  to  those  acknowledging  the  being  of  God, 
and  New  Hampshire  retains  to  the  present  day  a  clause 
according  to  the  Protestant  church  a  privileged  status. 
A  proposed  amendment  failed  in  1912  through  popular 
indifference.  Indifference  is,  indeed,  the  dominating 
attitude  toward  guaranties  of  individual  right;  there  is 
much  greater  interest  in  cutting  them  down  where  they 

1  It  appears  in  the  constitution  of  Louisiana  of  1845. 


CONSTITUTIONAL  PROVISIONS  183 

are  inconvenient  obstacles  in  the  enforcement  of  popular 
policies  (so  with  regard  to  the  protection  against  self- 
crimination)  than  hi  preserving  them  unimpaired. 

This  does  not  mean  that  there  is  not  sufficient  senti- 
mental attachment  to  the  bills  of  rights  to  muster  ample 
support  in  their  defense  if  they  should  be  seriously 
attacked.  This  sentimental  attachment  also  has  a  very 
real  political  value;  for  the  belief  in  the  ideals  of 
liberty  is  one  of  the  chief  elements  in  the  stability 
of  American  institutions,  and  creates  a  fundamental 
political  contentment  under  governmental  imperfec- 
tions which  is  hardly  rivaled  hi  countries  where  a 
technically  more  perfect  government  is  provided  by 
less  popular  authority. 

In  estimating  the  practical  importance  of  bills  of 
rights,  it  should  also  be  remembered  that,  while  we  place 
a  greater  faith  hi  charter  documents  than  the  British 
people,  in  America,  too,  the  written  law  represents  the 
living  constitution  but  imperfectly.  Absence  of  mili- 
tarism, absence  of  official  caste,  decentralized  adminis- 
tration, popularized  education,  great  vocational  mobility, 
absence  of  sharp  sectional  or  denominational  antagonism, 
a  very  pronounced  consciousness  of  national  achievement 
and  promise — these  are  the  things  that  impress  American 
institutions  with  their  distinctive  character,  and  there  is 
neither  any  possibility  nor  any  need  of  giving  all  of  them 
constitutional  formulation. 

Confining,  however,  our  view  to  the  written  consti- 
tutions, and  contrasting  our  bills  of  rights  with  the 


184  STANDARDS  OF  AMERICAN  LEGISLATION 

tendencies  shown  in  dealing  through  the  organic  law 
with  economic  policies,  it  is  safe  to  conclude  that  guar- 
anties of  right  and  justice  are  not  the  deliberate  creation 
of  a  constitution-making  democracy,  or  its  chief  or  even 
serious  concern. 


CHAPTER  V 
JUDICIAL  DOCTRINES 

As  the  formal  expression  of  the  prevailing  economic 
constitution  of  society,  private  law  has  necessarily  a 
strong  individualistic  cast.  The  two  systems  which  have 
exerted  the  most  powerful  influence  on  legal  history,  the 
law  of  Rome  and  the  law  of  England,  have  also  been  the 
most  individualistic,  while  German  jurists  of  the  school 
whose  foremost  representative  is  Professor  von  Gierke 
take  considerable  satisfaction  in  pointing  to  the  mani- 
festations of  a  superior  social  spirit  which  they  find 
in  Germanic  private  law,  and  which  they  desire  to 
strengthen  against  the  influences  of  a  Romanizing 
jurisprudence. 

The  individualistic  spirit  of  the  private  law  is  epito- 
mized in  the  right  of  ownership,  the  jus  utendi  abutendi 
consumendi,  a  right  divorced  from  any  obligation,  in- 
tolerant of  restraints  upon  alienation,  and  suffering  the 
servitude  of  easements  only  within  narrow  bounds.  In 
recognizing  a  free  power  of  testamentary  disposition, 
unrestrained  by  duty  portions,  an  executor's  adminis- 
tration practically  exempt  from  official  control,  and  a 
marital  property  right  of  the  husband  unqualified  by 
community  claims  of  the  wife,  the  common  law  has 
carried  the  right  of  ownership  to  extremes  from  which  in 
part  at  least  it  has  been  found  necessary  to  recede,  but 

185 


1 86  STANDARDS  OF  AMERICAN  LEGISLATION 

the  modifications  are  slight  as  compared  with  the  power 
that  remains. 

The  law  of  contracts  breathes  a  similar  spirit.  It  has 
been  pointed  out  before  how  chary  the  common  law  is  in 
implying  obligations  in  connection  with  the  principal 
contractual  relations:  seller  and  purchaser,  landlord  and 
tenant,  master  and  servant,  creditor  and  debtor.  The 
principle  caveat  emptor,  the  paucity  of  tenant's  rights, 
the  rules  of  employer's  liability,  testify  to  the  reluctance 
of  the  common  law  to  carry  obligations  beyond  what  has 
been  stipulated  and  assumed  explicitly.  Expressed  in 
procedural  terms  in  which  the  older  law  reveals  itself 
most  clearly,  individualism  means  the  favored  position  of 
the  defendant  who  relies  upon  his  possession  or  upon  the 
letter  of  his  bond. 

In  the  promises  of  the  Great  Charter  the  procedural 
principles  of  the  common  law  assumed  the  character  of 
guaranties,  and  the  thirty-ninth  clause,  the  main  pre- 
cursor of  our  fundamental  rights,  is  a  defendant's  charter. 
To  transform  a  right  into  a  guaranty  means  to  protect  it, 
not  merely  against  invasion  by  private  third  partes,  but 
against  official  invasion  under  the  guise  of  authority. 
Procedural  guaranties  could  be  thus  created  because  they 
were  conceived  as  guaranties  against  royal  action. 
That  is  to  say,  the  administration  of  justice  was  part  of 
the  royal  prerogative.  Parliament,  when  it  became  a 
powerful  organ  of  government,  was  content  to  leave  it  on 
the  whole  to  custom  and  tradition,  and  was  supposed  to 
be  watchful  only  that  the  royal  power  should  not  create 


JUDICIAL  DOCTRINES  187 

dangerous  innovations.  Hence  the  early  remonstrances 
against  the  jurisdiction  of  the  Chancellor;  and  while 
eventually  this  jurisdiction  was  acquiesced  in  as  a  neces- 
sary complement  to  the  common  law,  the  abrogation  of 
the  Star  Chamber  by  act  of  Parliament  may  justly  be 
regarded  as  an  insistence  upon  the  carrying  out  of  the 
promise  of  the  Great  Charter  that  the  Crown  would  not 
exercise  punitive  powers  except  in  accordance  with  the 
law  of  the  land. 

The  idea  that  private  right  should  be  protected,  not 
merely  against  private  wrong,  but  against  public  and 
authoritative  encroachment,  was  not  confined  to  the 
province  of  procedure,  but  extended  wherever  authority 
was  conceived  as  subject  to  law.  Thus  royal  power  was 
again  met  by  common-law  liberty  when  the  attempt  was 
made  to  exercise  the  prerogative  by  the  grant  of  monop- 
olies, and  the  struggle  for  freedom  of  private  action 
terminated  successfully  in  the  beginning  of  the  seven- 
teenth century,  first  by  the  judicial  and  then  by  the 
legislative  declaration  of  the  illegality  of  monopolies 
under  the  principles  of  the  common  law. 

The  general  civil  liberty  of  the  individual  to  enter 
into  legal  relations  with  other  individuals,  which  underlies 
all  private  law,  is  perhaps  the  vaguest  of  all  rights;  like 
the  air  around  us,  it  is  so  abundant  and  so  little  likely  to 
be  disputed  or  invaded  by  others  that  it  does  not  nor- 
mally stand  in  need  of  protection,  and  until  the  advent 
of  constitutional  limitations  it  had  hardly  any  recognized 
legal  status.  It  is  all  the  more  instructive  that  we  can 


i88  STANDARDS  OF  AMERICAN  LEGISLATION 

construe  a  common-law  theory  even  with  reference  to 
this  general  liberty. 

For  from  times  immemorial  this  liberty  was  subject  to 
local  regulation  by  corporate  by-laws  which  extended, 
not  only  to  the  preservation  of  local  order,  but  to  the 
enforcement  of  standards  of  honesty  and  quality  in 
manufacture  and  trade.  Since,  in  the  absence  of  special 
custom,  no  corporation  could  make  any  by-law  contrary 
to  the  common  law  or  common  right  and  yet  was  allowed 
to  regulate  the  exercise  of  rights,  it  follows  that  the 
common-law  concept  of  civil  liberty  was  by  no  means 
repugnant  to  regulation  in  the  public  interest,  but 
recognized  such  regulation  as  a  proper  and  ordinary 
incident  and  qualification.  It  was  regulation  imposed  by 
royal  authority  which  Parliament  in  course  of  time  came 
to  consider  as  a  violation  of  its  own  legislative  preroga- 
tive; but  this  is  far  from  saying  that  regulation  in  itself 
was  considered  as  contrary  to  the  common  law. 

However,  the  common  law  admitted  of  regulation  only 
within  certain  limits:  a  corporate  by-law  transcending 
those  limits  was  treated  as  void.  This  was  particularly 
true  of  by-laws  in  restraint  of  trade,  which  created  trade 
monopolies  or  restrictions  not  looking  solely  to  "the 
good  of  the  commodity"  (Tailors  of  Ipswich,  n  Reports 
530).  They  were  said  to  be  against  common  right.  Put 
in  other  words,  the  common  law  treated  a  certain 
quantum  of  liberty  as  protected  from  corporate  regual- 
tion.  Here,  then,  we  have  realized  the  idea  of  eco- 
nomic liberty  secured  against  governmental  action,  a 


JUDICIAL  DOCTRINES  189 

common-law  right  of  civil  liberty  as  against  unreason- 
able regulation. 

From  the  fifteenth  century  on  subordinate  powers  of 
regulation  declined  in  England;  the  making  of  corporate 
by-laws  was  in  important  respects  restricted,1  and  the 
function  of  trade  regulation  was  assumed  by  Parliament; 
and  the  royal  power  to  regulate  by  ordinance  or  procla- 
mation gradually  came  to  be  considered  as  unconsti- 
tutional. Regulation  and  restraint  of  individual  liberty 
henceforward  proceeded  from  the  legislative  power  of 
Parliament  exclusively.  It  is  true  that  toward  the  end 
of  the  seventeenth  century  a  long  period  set  in  during 
which  economic  and  social  regulation  was  sparingly  used 
(except  so  far  as  external  "commerce"  was  concerned), 
and  incisive  interference  with  the  conduct  of  private 
business  revived  only  with  the  new  factory  legislation  at 
the  beginning  of  the  nineteenth  century.  . 

The  transfer  of  practically  all  regulative  power  "to 
Parliament  had  the  effect  of  removing  from  the  English 
law  the  concept  of  a  sphere  of  individual  immunity  from 
regulation  as  a  legal  right.  That  happened  at  the  very 
time  when  Continental  jurists  began  to  claim  for  natural 
law  a  positive  force  and  status.  They  not  only  now 
developed  the  theory  of  vested  rights,  which  has  remained 
foreign  to  the  technical  terminology  of  the  English  law, 
but  contended  that  laws  violating  the  natural  limitations 
of  sovereign  power  were  null  and  void,  and  in  Germany 
territorial  statutes  were  questioned  on  that  ground  in 

1  Kyd  on  Corporations,  II,  107-9. 


IQO  STANDARDS  OF  AMERICAN  LEGISLATION 

the  imperial  court  as  denials  of  justice,  just  as  they  are 
attacked  in  America  as  violating  due  process  of  law. 

It  is  true  that  in  England  Locke  argued  for  the 
inviolability  of  property  and  a  consequent  limitation  of 
sovereign  power;1  but  he  appears  to  have  thought  of 
natural  as  contrasted  with  legal  rights,  and  he  conceived 
of  a  power  superior  to  the  legislative  only  by  way  of 
revolution;3  there  is  nothing  comparable  in  English 
literature  to  the  full  elaboration  of  a  doctrine  of  vested 
rights  by  German  and  Dutch  jurists,  and  it  is  character- 
istic that  Mr.  Thayer,  in  introducing  his  chapter  on 
"Eminent  Domain"  in  his  Cases  on  Constitutional  Law, 
quotes  from  the  writings  of  these  jurists  exclusively. 

The  English  state  of  mind  is  easily  understood.  The 
great  revolutions— religious  and  political — of  the  sixteenth 
and  seventeenth  centuries  had  assumed  the  forms  of  acts 
of  Parliament;  it  was  therefore  natural  that  English 
lawyers  should  believe  in  parliamentary  omnipotence. 
If  there  was  a  common  right  against  corporate  or  royal 
regulation,  and  in  this  sense  a  common-law  guaranty  of 
individual  liberty,  a  similar  guaranty  against  parliamen- 
tary regulation  was  unthinkable.  The  subjection  to  the 
laws,  i.e.,  to  acts  of  Parliament,  is  assumed  as  a  necessary 
qualification  of  every  right,  not  merely  of  political  or 
civil  liberty,  but  also  of  the  vested  right  of  property. 
The  compensation  paid  in  the  exercise  of  eminent  domain 
is  treated  by  Blackstone  as  a  firmly  established  parlia- 

1  Second  Treatise  concerning  Government,  sec.  138. 
'Ibid.,  Sec.  149. 


JUDICIAL  DOCTRINES  191 

mentary  practice,  not  as  a  legal  right.  The  idea  of 
rights  which  the  state  is  bound  to  respect,  with  which 
German  writers  not  uncommonly  operate,  is  foreign  to 
English  jurisprudence.  Strong  as  is  or  was  the  convic- 
tion in  England  that  the  male  adult  person  should  not  be 
interfered  with  in  his  economic  arrangements,  even  the 
most  individualistic  of  English  thinkers  do  not  hint  at 
possible  limitations  of  a  legal  character  upon  Parliament; 
the  idea  of  a  legal  right  to  freedom  from  economic  of 
social  regulation  has  disappeared. 

The  American  state  of  mind  was  different  from  the 
beginning.  The  circumstances  of  the  settlement  of  the 
colonies  made  it  natural  and  almost  inevitable  that 
political  and  legal  ideas  which  in  England  after  the 
seventeenth  century  were  relegated  to  the  domain  or 
philosophical  speculation  should  appear  as  having  prac- 
tical effect  and  operation.  The  establishment  of  self- 
government  on  a  new  soil  realized  the  idea  of  the  people 
as  the  source  of  political  power  as  it  had  not  been  realized 
in  historic  times;  the  primitive  conditions  of  life  and  the 
opportunities  afforded  by  a  virgin  continent  justified  a 
belief  in  natural  rights;  the  distinction  between  funda- 
mental and  non-fundamental  laws  found  expression  at 
once  in  a  number  of  colonies  (Connecticut,  Massachusetts, 
Pennsylvania),  and  thus  was  carried  into  American  public 
law  the  habit  of  laying  down  abstract  principles,  where 
English  constitutional  tradition  had  stated  concrete 
rights.  And  while  English  legal  thought  acknowledged 
limitations  on  the  royal  prerogative,  but  regarded 


IQ2  STANDARDS  OF  AMERICAN  LEGISLATION 

parliamentary  omnipotence  as  axiomatic,  the  eighteenth- 
century  controversies  over  the  power  of  taxation  produced 
the  curious  result  that  the  colonists,  while  protesting 
their  loyalty  to  the  king,  denied  the  power  of  Parliament 
to  bind  them,  since  they  could  not  be  represented  in 
it,  and  free  people  could  be  bound  only  through  their 
representatives. 

Thus  the  experiences  of  the  colonies  prepared  the  way 
for  the  advent  of  the  American  constitutional  system. 
There  was  a  theory  of  popular  supremacy,  a  theory  of 
natural  rights,  a  theory  of  paramount  laws,  a  theory  of 
limited  legislative  power,  but  it  does  not  follow  that  there 
was  also  a  theory  of  inherent  or  implied  limitations  upon 
the  power  of  the  legislature.  Where  it  was  intended  to 
secure  a  right  against  legislation  it  was  specifically 
expressed,  as  had  been  the  custom  in  the  earlier  colonial 
fundamental  orders  and  bodies  of  liberties;  very  general 
declarations  in  favor  of  popular  supremacy  and  reserved 
and  natural  rights  were  thrown  in  for  good  measure,  and 
a  check  of  a  legal  nature  was  hardly  contemplated  by 
these  declarations. 

It  is  true  that  even  with  regard  to  the  specific  clauses 
there  was  no  explicit  method  pointed  out  of  giving  them 
legal  effect;  but  the  judicial  power  to  annul  unconsti- 
tutional laws  was  foreshadowed  and  established  itself 
quickly  and  firmly. 

The  history  of  this  phase  of  American  constitutional 
law  has  been  frequently  set  forth,  and  it  is  sufficient  to 


JUDICIAL  DOCTRINES  IQ3 

say  that  by  the  beginning  of  the  nineteenth  century  it  was 
fully  recognized,  and  that  the  power  has  never  since  been 
seriously  shaken.  But  the  present  scope  of  the  power 
was  a  matter  of  slower  development,  and  it  is  contro- 
versial to  what  extent  the  courts  recognized  from  the 
beginning  general  limitations  as  judicially  enforceable. 
A  brief  review  of  the  decisions  will  therefore  be  useful, 
and  for  the  sake  of  simplicity  this  will  be  given  in  form  of 
a  chronological  enumeration  of  cases  in  which  general 
clauses  as  distinguished  from  specific  guaranties  were 
discussed. 


DEVELOPMENT  OF  THE  JUDICIAL  ENFORCEMENT  OF  CONSTITU- 
TIONAL  LIMITATIONS   ON   THE   BASIS   OF   GENERAL 
CLAUSES- 

1789.  South  Carolina,  Ham  v.  McClaws,  i  Bay  93.  An  act 
forfeiting  imported  slaves;  retroactive  effect  said  to  be  against 
common  reason,  but  avoided  by  giving  the  act  a  non-retroactive 
construction. 

1789.  South  Carolina,  Bowman  v.  Middleton,  i  Bay  252.  Act 
of  1712  changing  the  course  of  descent  after  the  death  of  the 
owner.  Held  to  be  against  common  right  and  against  Magna 
Charta,  and  therefore  ipso  facto  void. 

1800.  U.S.  Supreme  Court,  Cooper  v.  Telfair,  4  Dall.  14.  Act 
of  attainder  and  confiscation,  passed  by  Georgia  in  1782,  sustained. 
Chase:  "The  general  principles  contained  in  the  constitution  are 
not  to  be  regarded  as  rules  to  fetter  and  control,  but  as  matter 
merely  declaratory  and  directory."  Paterson:  "I  consider  it  a 
sound  proposition,  that  wherever  the  legislative  power  of  a  govern- 
ment is  undefined,  it  includes  the  judicial  and  executive  attributes." 


194  STANDARDS  OF  AMERICAN  LEGISLATION 

Gushing:  "The  right  to  confiscate  and  banish,  in  the  case  of  an 
offending  citizen,  must  belong  to  every  government." 

1805.  North  Carolina,  Trustees  of  University  v.  Foy,  i  Murphy 
58.  Act  divesting  lands  previously  given  to  State  University,  held 
unconstitutional.  The  constitutional  clause  protesting  against 
deprivation  of  life,  liberty,  and  property  would  be  idle,  if  the  legis- 
lature can  make  the  "law  of  the  land." 

1811.  New  York,  Dash  v.  Van  Kleek,  7  Johns.  477.  Act 
allowing  a  new  defense  to  a  right  of  action;  retroactive  effect  upon 
a  pending  action  avoided  by  construction;  judges  rather  incline 
in  favor  of  the  legislative  power. 

1814.  Massachusetts,  Holden  v.  James,  n  Mass.  396.  Act 
allowing  a  suit  to  be  brought  after  the  statute  of  limitations  has 
run  against  the  right  of  action;  held  void;  no  power  to  suspend 
laws  in  favor  of  an  individual;  reliance  on  civil  liberty,  natural 
justice,  and  standing  laws.1 

1818.  New  Hampshire,  M errill  v.  Sherburne,  i  N.H.  204.  Act 
granting  new  trial  unconstitutional;  relying  on  unprinted  pre- 
cedents. 

1822.  Connecticut,  Goshen  v.  Stonington,  4  Conn.  209.  Act 
curing  an  invalid  marriage  sustained;  dictum  that  a  direct  invasion 
of  a  vested  right  would  be  a  violation  of  the  social  compact  and 
within  the  control  of  the  judiciary. 

1825.  Vermont,  Ward  v.  Barnard,  i  Aikens  121.  A  special 
act  of  the  legislature  releasing  an  imprisoned  debtor  held  void. 
So  far  as  an  act  of  the  legislature  is  retrospective,  or  ex  post  facto, 
it  is  not  a  prescribed  rule  of  conduct.  An  act  conferring  upon 
any  one  citizen  privileges  to  the  prejudice  of  another  and  which  is 
not  applicable  to  others  in  like  circumstances,  does  not  enter  into 
the  idea  of  municipal  law,  having  no  relation  to  the  community 
in  general. 

1  See  two  articles,  13  American  Jurist,  72;  14  ibid.,  83,  1835,  commenting 
on  this  decision. 


JUDICIAL  DOCTRINES  195 

1826.  Kent's  Commentaries,  I,  455:  "A  retrospective  statute 
affecting  and  changing  vested  rights  is  very  generally  considered  in 
this  country  as  founded  on  unconstitutional  principles  and  conse- 
quently inoperative  and  void." 

1829.  United  States  Supreme  Court,  Wilkinson  v.  Leland,  2 
Pet.  627.    Act  of  Rhode  Island  confirming  an  executor's  sale 
sustained.    Webster  as  counsel  relies  on  inherent  principles  of 
liberty  and  on  the  principle  of  the  separation  of  powers  as  inherent 
in  a  republican  government,  no  matter  whether  there  is  a  written 
constitution  or  not  (Rhode  Island  had  at  the  time  only  the  old 
colonial  charter  without  express  limitations).     Giving  property 
of  A  to  B  must  be  done  judicially  and  not  legislatively,  though  it 
may  perhaps  be  done  by  the  legislature.    He  concedes  that  the 
former  practice  has  been  to  the  contrary.    Judge  Story  agrees  to 
the  general  principle,  but  the  act  in  question  does  not  violate  it. 

1830.  Federal  District  Court,  Bennet  v.  Boggs,  i  Baldwin  60, 
74.    Judge  Baldwin:   "We  are  not  the  guardians  of  the  rights 
of  the  people  of  a  state  unless  they  are  secured  by  some  consti- 
tutional provision  which  comes  within  our  cognizance." 

1830.  Tennessee,  Marr  v.  Enloe,  i  Yerg.  452.  The  taxing 
power  cannot  be  delegated  to  the  justices  of  the  county  courts, 
holding  permanent  offices  and  wholly  irresponsible  to  the  people. 
The  court  also  relies  upon  an  article  of  the  constitution  requiring 
equal  taxation  of  all  lands,  which  the  legislation  in  question  sought 
to  evade. 

1831-36.  Tennessee.  A  number  of  special  acts  declared 
unconstitutional  as  usurpations  of  the  judicial  power  by  the 
legislature,  or  as  violating  the  "law  of  the  land,"  which  must  be 
a  general  and  equal  law.  The  cases  are  reviewed  in  Jones  v.  Pary, 
10  Yerg.  59;  a  discussion  of  the  "law  of  the  land"  is  found  in  2 
Yerg.  599,  605,  1831. 

1833.  Kentucky,  Gaines  v.  Bufo,rd,  i  Dana  481.  Act  for- 
feiting lands  for  failure  to  improve  them  held  void.  P.  501: 


196  STANDARDS  OF  AMERICAN  LEGISLATION 

"The  idea  of  a  sovereign  power  is  incompatible  with  the  existence 
and  permanent  foundation  of  civil  liberty  or  the  rights  of  property." 
This  is  the  first  judicial  reference  to  civil  liberty  as  an  inviolable 
right;  but  the  decision  relates  to  a  vested  right  of  property. 

1834.  New  York,  Matter  of  Albany  Street,  n  Wend.  148. 
Taking  by  eminent  domain  more  of  a  lot  than  is  needed  for  public 
use  held  unconstitutional.  It  is  a  violation  of  natural  right,  and 
if  it  is  not  in  violation  of  the  letter  of  the  constitution  it  is  in 
violation  of  its  spirit  and  cannot  be  supported. 

1838.  New  York,  Cochran  v.  Van  Surley,  20  Wend.  365.  Act 
directing  sale  of  infant's  real  estate  sustained.  Walworth  says 
that  to  transfer  property  from  one  to  another  would  be  void  as 
being  against  the  spirit  of  our  constitution  and  not  within  the 
powers  delegated  to  the  legislature  by  the  people.  Verplanck 
says  that  he  can  find  no  authority  for  a  court  to  vacate  or  repeal 
a  statute  on  that  ground  alone;  he  would  require  an  express  con- 
stitutional sanction,  but  finds  in  the  fact  that  the  constitution  of 
New  York  of  1821  added  to  the  "law-of-the-land"  clause  a  "due- 
process"  clause,  a  protection  against  mere  arbitrary  legislation 
under  whatever  pretext  of  private  or  public  good;  at  the  same 
time  deprecates  a  broad,  loose,  and  vague  interpretation  of  a 
constitutional  provision;  very  significant  dicta,  particularly  the 
reliance  upon  the  due-process  clause. 

1838.  Alabama,  Ex  parte  Dorsey,  7  Porter  293.  Act  requiring 
of  an  attorney  an  oath  that  he  has  not  engaged  in  a  duel  held  void, 
partly  on  the  ground  of  the  violation  of  procedural  guaranties, 
since  the  offense  must  be  ascertained  by  due  course  of  law,  but 
also  relying  upon  an  extremely  strong  article  (30)  of  the  Bill  of 
Rights  retaining  rights  non-enumerated  for  the  people,  and  except- 
ing the  Bill  of  Rights  out  of  the  general  powers  of  government, 
and  declaring  all  contrary  laws  to  be  null  and  void.  This  is  the 
first  decision  declaring  a  statute  invalid  without  vested  rights 
being  involved. 


JUDICIAL  DOCTRINES  197 

1843.  New  York,  Taylor  v.  Porter,  4  Hill  140.    Act  permitting 
property  to  be  taken  for  a  private  road,  on  payment  of  com- 
pensation, held  void,  as  exceeding  the  scope  of  true  legislative 
power,  as  violating  the  "law  of  the  land"  and  "due  process." 
The  practical  effect  of  the  decision  was  nullified  by  constitutional 
amendment. 

1844.  Arkansas,  Riggs  v.  Martin,  5  Ark.  506.    An  act  requir- 
ing a  plaintiff  to  support  his  claim  by  oath  in  open  court;  held 
unconstitutional  as  a  practical  denial  of  justice,  since  it  prevents 
an  absent  plaintiff  from  recovering. 

1847.  Pennsylvania,  Parker  v.  Commonwealth,  6  Pa.  507. 
1848.  Delaware,  Rice  v.  Foster,  4  Harr.  479.  County  local- 
option  law  held  void  as  unconstitutional  delegation  of  legislative 
power  to  the  people. 

Having  thus  arrived  at  the  middle  of  the  century,  we 
find  that  while  there  have  been  far-reaching  dicta  spread 
over  the  entire  period,  the  actual  decisions  annulling  laws 
on  the  basis  of  non-specific  clauses  have  been  few,  and 
have  either  involved  a  violation  of  vested  rights  of 
property  or  of  principles  of  procedure  or  a  delegation  of 
legislative  power.  Civil  liberty  is  mentioned  once  as  a 
constitutional  right,  but  no  law  restraining  the  exercise 
of  civil  rights  prospectively  has  been  declared  uncon- 
stitutional. This  issue  is  not  presented  until  the  following 
decade. 

1852   TO   1858.      LIQUOR  PROHIBITION  CASES 

1852.  Illinois,  Jones  v.  People,  14  111.  196.  Prohibition  law 
sustained;  "a  government  that  did  not  possess  the  power  to  pro- 
tect itself  against  such  and  similar  evils  would  scarcely  be  worth 
preserving." 


198  STANDARDS  OF  AMERICAN  LEGISLATION 

1852.  New  Hampshire,  Opinion  of  Justices,  25  N.H.  537.     So 
long  as  liquor  is  property  it  would  be  unconstitutional  to  take 
away  all  remedies  to  recover  its  possession. 

1853.  Massachusetts,  Com.  v.  Kendall,  12  Cush.  414.    Pro- 
hibition law  sustained;  it  violates  no  principle  of  the  constitution; 
brief  four-line  opinion. 

1854.  Michigan,  People  v.  Hawley,  3  Mich.  330.    Prohibition 
law  sustained;  objectors  rely  on  vested  rights  and  contracts;  the 
objection  is  briefly  disposed  of. 

1855.  Iowa,  Santo  v.  State,   2   Iowa   167.    Prohibition  law 
sustained;   relies  on  the  license  cases  decided  by  United  States 
Supreme  Court. 

1855.  Vermont,  Lincoln  v.  Smith,  27  Vt.  335.  Prohibition  law 
sustained,  "certainly  not  contrary  to  the  social  compact";  con- 
flicting views  as  to  limitations  of  legislative  power. 

1855.  Indiana,  Beebe  v.  State,  6  Ind.  504.    Prohibition  law 
declared    unconstitutional,    chiefly    because    destroying    vested 
rights  of  property;  strong  dicta  on  limitation  of  legislative  power 
in  general;    court  has  power  to  inquire  whether  the  traffic  is 
harmful.    This  decision  appears  to  be  ignored  in  later  Indiana 
cases. 

1856.  Michigan,  People  v.  Gallagher,  4  Mich.  244.    Prohibi- 
tion law  sustained;  a  very  full  discussion  reviewing  the  decisions 
on  the  power  to  declare  laws  unconstitutional,  chiefly  dicta;    a 
large  discretionary  power  is  indispensable;  -should  it  be  in  the 
courts  rather   than  in   the   legislature?     A   dissenting  opinion 
insists  strongly  on  inherent  limitations  and  on  the  protection  of 
vested  interests;   the  judicial  department  is  a  conservative  body 
designed  to  stand  between  the  legislature  and  the  people. 

1856.  New  York,  People  v.  Wynehamer,  13  N.Y.  378.  An 
absolute  prohibition  law  is  unconstitutional  so  far  as  its  acts  on 
liquor  owned  at  the  time  of  the  passage  of  the  act;  the  power  of 
prospective  prohibition  is  recognized. 


JUDICIAL  DOCTRINES  199 

1856.  Connecticut,  State  v.  Wheeler,  25  Conn.  290.  Prohibi- 
tion law  sustained;  power  purely  legislative  in  character. 

1856.  Delaware,  State  v.  Allmond,  2  Houst.  612.    Prohibition 
law  sustained;   better  presume  the  impossibility  of  an  abuse  of 
legislative  power  than  predicate  upon  its  assumption  the  right  to 
review  legislative  action  on  any  other  than  specific  grounds. 

1858.  Rhode  Island,  State  v.  Paul,  5  R.I.  185.  Prohibition 
law  sustained;  does  not  violate  any  specific  provision  (obligation 
of  contracts,  ex  post  facto) ;  far  within  the  legislative  competence 
to  enact. 

We  thus  find  only  two  cases  in  which  prohibition  is 
declared  unconstitutional,  mainly  or  exclusively  in  re- 
liance upon  the  protection  due  to  vested  rights;  there 
is  no  constitutional  recognition  of  a  right  of  reasonable 
exercise  of  civil  liberty,  except  perhaps  in  Indiana  and  in 
a  dissenting  opinion  in  Michigan.  The  general  judicial 
acquiescence  in  an  unprecedented  exercise  of  legislative 
power  is  all  the  more  noteworthy,  as  the  legislation  in 
question  was  for  the  time  almost  unenforceable  and  in 
most  states  short-lived. 

1857.  California,  Billings  v.  Hall,  7  Cal.  i.    A  betterment  act 
operating  in  favor  of  tresspassers  held  unconstitutional  as  depriv- 
ing of  a  vested  right. 

1858.  California,  Ex  parte  Newman,  9  Cal.  502.    A  Sunday 
law  held  unconstitutional  with  strong  expressions  against  legisla- 
tive  omnipotence,  Judge  Field   dissenting.    The  first  decision 
squarely   enforcing   civil   liberty   against   legislative   regulation. 
Overruled  in  1861,  Ex  parte  Andrews,  18  Cal.  678. 

1858.  Pennsylvania,  Mott  v.  Pa.  R>.  Co.,  30  Pa.  9.  Act  dis- 
charging Railroad  Company  forever  from  certain  state  taxes  in 


200  STANDARDS  OF  AMERICAN  LEGISLATION 

consideration  of  a  payment,  held  unconstitutional  as  a  surrender 
of  delegated  power.  An  entirely  novel  inherent  limitation. 

1862.  Iowa,  State  v.  County  of  Wapello,  13  Iowa  388.  Act 
authorizing  railroad-aid  bonds  held  unconstitutional,  citing  no 
authority,  but  relying  in  part  on  retention  of  non-enumerated 
rights  by  people;  followed  in  Michigan,  People  v.  Salem,  20  Mich. 
452,  1870,  but  contrary  to  weight  of  authority,  which  is  supported 
by  United  States  Supreme  Court.  Subsequently  settled  by 
express  constitutional  prohibitions. 

1865.  New  York,  Powers  v.  Shepard,  54  Barb.  524  (court  of 
first  instance).  An  act  prescribing  the  amount  that  may  be  paid 
for  substitutes  in  the  army  held  unconstitutional;  if  valid,  same 
decision  of  case  by  construction;  sweeping  statements  as  to 
limitation  of  legislative  power  to  legal  sphere;  moral,  religious, 
and  economic  interests  being  out  of  that  sphere;  such  legislation 
inconsistent  with  constitutional  republican  government.  The 
first  decision  maintaining  the  freedom  of  contract  against  legisla- 
tive regulation;  no  authority  cited. 

The  period  from  1850  to  1870  is  thus  marked  by  the 
first  decisions  opposing  general  constitutional  limitations 
to  the  legislative  regulation  of  civil  liberty,  but  of  the 
two  decisions  one  was  three  years  later  overruled,  and 
the  other  came  from  a  single  judge  and  was  rather  incon- 
clusive. The  decisions  against  the  surrender  of  the  taxing 
power  and  against  its  unlawful  exercise  in  aiding  private 
enterprise  are,  on  the  other  hand,  significant  as  recog- 
nizing limitations  not  operating  directly  in  favor  of  an 
individual  right  of  liberty  or  property,  but  inherent  in 
the  nature  and  purpose  of  governmental  functions  and 
particularly  of  the  taxing  power. 


JUDICIAL  DOCTRINES  201 

Surveying  the  period  of  approximately  one  hundred 
years  from  the  establishment  of  independent  government, 
we  find  a  thin  but  continuous  stream  of  dicta  in  favor  of 
the  judicial  power  to  control  the  exercise  of  a  plain  abuse 
of  legislative  power,  the  clauses  relied  upon  being: 
separation  of  powers;  law  of  the  land  and  due  process; 
retention  of  non-enumerated  rights  by  the  people  and 
the  non-delegation  of  power  to  the  legislature;  and  as 
additional  principles  not  specifically  expressed  the  inherent 
limitations  of  republican  government  and  the  incapacity 
further  to  delegate  delegated  power.  But  not  until  1857 
do  we  get  actual  decisions  declaring  laws  unconstitutional 
except  for  violating  vested  rights  or  the  separation  of 
powers,  and  until  1870  decisions  involving  other  principles 
are  so  isolated  and  so  contrary  to  the  general  trend  as  to 
be  almost  negligible. 

From  1870  on  we  have  to  take  account  of  the 
Fourteenth  Amendment,  but  apart  from  that  courts  begin 
to  declare  with  greater  frequency  and  confidence  legis- 
lation to  be  unconstitutional  because  it  appears  unreason- 
able either  in  degree  or  in  kind.  In  the  seventies  this 
new  development  is  illustrated  by  three  decisions  from 
IlHnois:  the  first,  1873  (Toledo  v.  Jacksonville,  67  111.  37), 
holding  certain  safeguards  required  of  railroads  unreason- 
able;1 the  second,  1875  (O.  &  M.  R.  Co.  v.  Lackey,  78  111. 
55),  holding  an  act  requiring  railroad  companies  to  take 
care  of  and  bear  the  expense  of  burial  of  the  bodies  of 

1 A  case  of  an  ordinance,  but  the  court  said  that  it  would  treat  the  ques- 
tion as  if  the  measure  had  direct  legislative  sanction. 


202  STANDARDS  OF  AMERICAN  LEGISLATION 

persons  dying  on  their  cars  arbitrary  and  void;  and  1878 
(Gridley  v.  Bloomington,  88  111.  554),  holding  that  there  is 
no  constitutional  power  to  require  owners  to  clean  side- 
walks— upon  a  principle  not  theretofore  intimated  that 
liabilities  may  not  be  imposed  without  some  intelligible 
justification. 

The  Fourteenth  Amendment  gave  an  express  sanction, 
hitherto  lacking,  to  the  principle  of  equality;  on  the 
other  hand,  the  due-process  clause  merely  added  the 
federal  guaranty  to  a  principle  already  familiar  under 
state  constitutions;  the  privileges  and  immunities  of 
United  States  citizenship  were  so  narrowly  construed  in 
the  Slaughter  House  cases  that  they  have  become  a 
negligible  quantity. 

The  decision  in  the  Slaughter  House  cases  in  1872, 
sustaining  the  grant  of  a  monopoly  charter  (16  Wall.  36), 
in  a  sense  marks  a  new  departure:  the  conservative  con- 
struction of  the  Fourteenth  Amendment  looks  backward; 
but  the  emphatic  dissent  of  four  justices  out  of  nine 
foreshadows  an  enlarged  view  of  constitutional  guaranties. 
This  view  was  presented  by  Justice  Field,  while  the 
prevailing  opinion  was  written  by  Justice  Miller,  who 
subsequently  wrote  the  prevailing  opinion  in  Loan 
Association  v.  Topeka. 

The  decision  in  Loan  Association  v.  Topeka  in  1875  (20 
Wall.  653)  recognized  with  regard  to  municipal  bonds 
issued  in  favor  of  a  manufacturing  company  the  principle, 
asserted  first  in  Iowa  with  reference  to  railroad-aid  bonds, 
that  the  taxing  power  may  not  be  exercised  for  private 


JUDICIAL  DOCTRINES  203 

benefit.  In  protecting  private  property  against  the  most 
insidious  source  of  attack — the  abuse  of  taxation — this 
decision,  based,  not  on  the  Fourteenth  Amendment,  but 
purely  on  inherent  limitations,  gave  to  the  individualistic 
conception  of  government  a  strong  support  and  evinced 
a  disposition  to  scrutinize  loose  governmental  practices 
more  closely  than  had  been  done  hi  the  past. 

In  1877  came  the  Granger  cases  (Munn  v.  Illinois,  94 
U.S.  113).  It  is  well  to  observe  that  the  leading  opinion 
was  not  written  in  a  railroad  case,  but  with  reference  to 
the  state  regulation  of  grain-elevator  charges,  the  elevator 
business,  unlike  the  railroad  business,  never  having  sought 
public  privileges  on  the  plea  that  it  was  public  hi  character. 
It  was  nevertheless  declared  to  be  affected  with  a  public 
interest  on  the  basis  of  the  obscure  public  or  common 
calling  of  the  common  law,  and  the  reliance  upon  certain 
monopolistic  features  which  distinguished  the  business  as 
carried  on  in  Chicago  was  tacitly  dropped  in  a  later  case 
coming  from  North  Dakota  (Brass  v.  North  Dakota,  153 
U.S.  391).  The  business  affected  with  a  public  interest 
was  declared  to  be  subject  to  regulation  in  the  economic 
interest  of  the  public — a  phase  of  state  power  which  had 
long  lam  dormant. 

In  estimating  the  importance  of  the  Granger  decisions 
the  following  points  should  be  borne  in  mind: 

First,  the  decision  did  not  overturn  previously  estab- 
lished judicial  doctrines.  This  appears  from  the  fact 
that  Justice  Field,  who,  in  his  dissenting  opinion  contended 
for  a  general  limitation  upon  legislative  power  upon  the 


204  STANDARDS  OF  AMERICAN  LEGISLATION 

basis  of  the  due-process  clause,  was  not  in  a  position  to 
cite  a  single  authority  in  favor  of  his  view.  He  himself 
had  dissented  from  the  early  California  decision  denying 
on  equally  general  grounds  the  validity  of  Sunday  legis- 
lation. 

Secondly,  the  practical  effect  of  the  decision  was  con- 
fined to  railroads  and  public  utilities,  which  almost  from 
the  very  beginning  by  universal  consent  had  been  treated 
as  subject  to  an  extraordinary  legislative  control. 

Thirdly,  the  coming  judicial  view  of  a  constitutional 
right  of  economic  liberty  was  foreshadowed  in  the  signifi- 
cant observation  which  came  from  Chief  Justice  Waite  to 
the  effect  that  the  constitution  does  not  confer  power  upon 
the  whole  people  to  control  rights  which  are  purely  and 
exclusively  private. 

From  the  middle  of  the  eighties  the  main  interest  in 
the  problem  of  constitutional  liberty  shifts  to  labor 
legislation. 

Before  that  time  there  had  been  too  little  of  that 
legislation,  and  the  enforcement  of  what  there  was  had 
been  too  lax  to  raise  serious  questions. 

In  1874  the  governor  of  Massachusetts,  in  recommend- 
ing a  ten-hour  law  for  males  as  well  as  females,  adverted 
to  no  constitutional  question;  and  in  1876  the  Supreme 
Court  of  Massachusetts,  in  sustaining  the  law  which  had 
been  enacted  for  women  only,  was  obviously  a  good  deal 
puzzled  to  understand  the  grounds  upon  which  the 
measure  was  contested  (Com.  v.  Hamilton  Mfg.  Co.,  120 
Mass.  383). 


JUDICIAL  DOCTRINES  205 

The  New  York  tenement  labor  decision  of  1885 
(Ex  parte  Jacobs,  98  N.Y.  98)  was  the  first  to  take  a 
decided  stand  against  the  power  of  the  state  to  control 
the  conditions  of  labor;  the  relation  between  employer 
and  employee,  however,  was  not  involved  or  discussed. 

The  new  doctrine  of  freedom  of  contract  between 
capital  and  labor  was  inaugurated  in  1886  by  two  decisions 
(Godcharles  v.  Wigeman,  113  P.  St.  431;  Millet  v.  People, 
117  111.  294). 

Since  then  probably  about  half  a  hundred  cases  have 
come  before  the  courts  involving  legislation  dealing  with 
hours  of  labor,  methods  of  wage  payment,  and  the  pro- 
tection of  union  labor.  The  decisions  have  greatly  varied, 
but  the  trend  adverse  to  the  validity  of  legislative  con- 
trol of  the  labor  contract  has  been  strong  enough  to  make 
a  profound  impression  upon  public  opinion.  The  deci- 
sion of  the  Supreme  Court  in  the  New  York  Bakers'  case 
in  1905  (Lochner  v.  New  York,  198  U.S.  45)  adopted 
the  extreme  view  on  that  side;  but  the  case  of  the 
Oregon  ten-hour  law  for  women  in  1908  (Mutter  v. 
Oregon,  208  U.S.  412)  indicated  the  setting  in  of  the 
receding  tide. 

The  New  York  decision  of  1911  against  the  validity  of 
the  new  type  of  workmen's  compensation  (Ives  v.  South 
Buffalo  R.  Co.,  201  N.Y.  271),  while  involving  a  different 
problem  of  a  more  technically  juristic  character,  again 
asserted  the  judicial  authority  to  enforce  inherent  and 
general  limitations.  The  doctrine  there  pronounced  has, 
even  in  the  brief  period  which  has  elapsed  since  the 


206  STANDARDS  OF  AMERICAN  LEGISLATION 

decision  was  written,  been  shown  to  have  very  much  less 
vitality  than  the  doctrine  of  freedom  of  contract.  It  is 
true  that  the  latter  doctrine,  too,  as  applied  to  capital  and 
labor,  strongly  supported  as  it  was  for  about  twenty  years 
by  professional  opinion,  will,  in  the  light  of  a  longer 
history,  probably  appear  as  a  merely  transitory  phase  of 
legal  and  judicial  thought.  But  to  measure  correctly 
the  strength  of  the  doctrine  that  the  power  to  regulate 
economic  freedom  is  constitutionally  limited,  we  must 
take  into  account  other  decisions  invalidating  legislation 
relating  to  business  or  property  which  is  less  affected  by 
the  present  trend  toward  social  reform.  Acts  have  been 
held  unconstitutional  creating  mechanics'  liens  in  favor  of 
subcontractors  (Spry  Lumber  Co.  v.  Trust  Co.,  77  Mich. 
199,  1889),  prohibiting  gift  sales  or  the  issue  of  trading 
stamps  (People  v.  Gillson,  109  N.Y.  389,  1888),  making 
ticket  scalping  illegal  (People  v.  Caldwell,  168  N.Y.  671, 
1901),  forbidding  the  sale  of  merchandise  in  bulk  (Block 
v.  Schwartz,  27  Utah  387,  1904),  prohibiting  the  manu- 
facture of  oleomargarine  (People  v.  Marx,  99  N.Y.  377, 
1885),  requiring  a  license  as  a  condition  for  permission 
to  engage  in  the  business  of  a  horseshoer  (Re  Ambrey,  36 
Wash.  308, 1904),  plumber  (State  v.  Smith,  42  Wash.  237, 
1906),  undertaker  (People  v.  Ringe,  197  N.Y.  143,  1910), 
or  dancing  master  (People  v.  Wilber,  198  N.Y.  i,  1910), 
and  attempting  to  restrict  outdoor  advertising  (Com.  v. 
Boston  Advertising  Co.,  188  Mass.  348,  1905). 

In  none  of  these  cases  was  any  specific  clause  of  the 
constitution  applicable,  but  the  doubts  which  the  courts 


JUDICIAL  DOCTRINES  207 

felt  were  regarding  the  applicability,  and  not  regarding 
the  existence,  of  general  and  inherent  limitations. 

From  the  point  of  view  of  constitutional  history  the 
decisions  in  the  labor  cases  will  retain  their  significance 
as  the  most  conspicuous  expressions  of  the  theory — at 
the  present  accepted  in  no  other  system,  and  repudiated 
particularly  in  the  other  English-speaking  jurisdictions 
and  in  foreign  democracies — that  it  is  not  only  on  the 
ground  of  specific  clauses,  or  on  the  ground  of  vested 
rights,  or  on  the  ground  of  a  violation  of  the  separation  of 
powers,  but  upon  the  basis  of  a  general  right  of  liberty, 
of  a  certain  degree  of  freedom  from  legislative  regulation 
and  control,  that  statutes  can  be  declared  unconstitu- 
tional. 

We  now  associate  the  exercise  of  this  judicial  power 
with  the  due-process  clause.  The  Supreme  Court  has 
refused  to  define  the  meaning  of  due  process,  but  its 
underlying  philosophical  concept  is  not  likely  to  be 
disputed:  it  stands  for  the  idea  that  it  is  not  the  mere 
enactment  of  a  statute  in  constitutional  form  that  pro- 
duces law,  but  the  conformity  of  that  enactment  to  those 
essentials  of  order  and  justice  which  in  our  minds  are 
indispensable  to  the  nature  of  law.  Viewed  in  the  light 
of  history,  these  essentials  are  few,  and  the  legislature  is 
not  likely  to  violate  them  except  through  inadvertence 
or  in  the  heat  of  political  passion.  There  consequently 
appeared  to  the  original  f  ramers  of  the  American  constitu- 
tions as  little  need  of  insuring  by  express  constitutional 
mandate  the  general  conformity  of  statute  to  law  as  is 


208  STANDARDS  OF  AMERICAN  LEGISLATION 

now  felt  in  Great  Britain  or  in  her  colonies.  Indeed,  they 
seemed  willing  to  concede  that  public  exigency  might 
now  and  then  demand  arbitrary  action:  thus  Massa- 
chusetts, while  guaranteeing  in  her  bill  of  rights  the 
application  of  the  "law  of  the  land"  and  of  "standing 
laws,"  yet  recognized  the  possibility  of  the  suspension  of 
laws,  only  requiring  that  it  be  done  by  the  legislature  or 
by  its  authority;  only  bills  of  attainder  and  ex  post  facto 
laws,  sometimes  also  retrospective  laws,  were  specifically 
and  absolutely  forbidden  and  reasonable  compensation 
was  assured  in  case  private  property  should  be  appropri- 
ated to  public  uses.  Massachusetts  in  this  respect  is 
typical;  the  term  "due  process"  does  not  even  occur  in 
the  first  constitutions  of  the  original  states.  The  specific 
clauses  of  the  bills  of  rights  practically  all  dealt  with 
issues  that  at  one  time  or  another  had  been  the  subject 
of  political  and  constitutional  controversy,  and  they 
were  by  no  means  looked  upon  as  merely  circumscrib- 
ing the  idea  of  government  by  law;  thus  in  guarantee- 
ing trial  by  jury  it  was  well  understood  that  certain 
phases  of  law  could  and  would  be  duly  administered 

without  it. 

But  the  judicial  power  to  declare  laws  unconstitutional 

gradually  and  perhaps  inevitably  introduced  a  new  con- 
cept of  due  process  by  expanding  the  inherent  limita- 
tions upon  the  legislative  power.  Practically  all  the  early 
applications  of  that  idea  turned  upon  the  protection  of 
vested  rights,  which  had  for  over  one  hundred  years  been 
treated  as  the  cardinal  principle  of  natural  law  wherever 


JUDICIAL  DOCTRINES  209 

natural  law  had  been  systematized.  Thus  far,  then, 
inherent  limitation  merely  enforced  an  almost  universal 
dictate  of  justice.  It  was  a  very  different  matter  to 
insist  in  the  name  of  the  idea  of  due  process  upon  a 
demarcation  of  spheres  of  government  and  liberty,  upon 
an  immunity  of  individual  action  from  legislative  control. 
Until  the  middle  of  the  nineteenth  century  no  such  idea 
was  suggested  by  lawyers,  courts,  or  text-writers.  The 
prohibition  legislation  of  the  fifties  gave  the  first  oppor- 
tunity of  asserting  such  a  liberty,  but  the  slight  attempts 
made  in  that  direction  found  practically  no  judicial 
response.  The  second  opportunity  was  given  by  the 
Granger  legislation  of  the  seventies,  the  first  great  at- 
tempt to  control  the  traditional  economic  freedom; 
and  now  the  Supreme  Court,  while  sustaining  the  legis- 
lative power  over  railroads  and  warehouses,  spoke  in 
approving  terms  of  the  immunity  of  private  business  from 
legislative  control.  This  idea  then  grew  and  established 
itself  in  connection  with  the  attacks  upon  labor  legislation 
from  about  the  middle  of  the  eighties  and  produced  the 
doctrine  of  a  constitutional  right  of  freedom  of  contract. 
The  true  nature  of  this  judicial  control  revealed  itself  in 
the  decision  of  the  New  York  Court  of  Appeals  which 
annulled  the  first  American  workmen's  compensation  law. 
The  point  at  issue  was  a  rule  of  liability,  a  subject  closely 
interwoven  with  the  very  elements  of  the  concept  of  law; 
yet  the  court  suggested  an  appeal  to  the  people  to  sanction 
the  principle  which  it  declared  violative  of  the  guaranty 
of  due  process.  It  is  well  known  that  the  appeal  has  been 


210  STANDARDS  OF  AMERICAN  LEGISLATION 

successfully  made  and  that  the  Court  of  Appeals  has 
bowed  to  the  popular  verdict  (Jensen  v.  So.  Pac.  R.  Co., 
215  N.Y.  514). 

Obviously,  the  Court  of  Appeals  believed  that  the 
people  of  the  state  of  New  York  in  adopting  their  con- 
stitutions had  intended  to  place  certain  fundamental 
notions  of  right  and  justice  beyond  the  reach  of  the 
legislative  power,  and  that  the  due-process  clause  served 
that  purpose,  but  that  in  the  hands  of  the  people  them- 
selves these  notions  were  legitimate  subjects  of  change 
with  the  progress  of  social  and  economic  thought.  This 
view  also  explains  the  apparent  paradox  that  the  same 
words  bear  a  different  construction  in  the  state  and  in  the 
federal  Constitution.  The  situation  is  best  understood 
when  we  say  that  the  court  in  the  name  of  due  process 
enforced  fundamental  policies  and  not  merely  what  the 
United  States  Supreme  Court  had  designated  as  cardinal 
and  immutable  principles  of  justice. 

For  nearly  a  century  economic  freedom  had  reigned 
almost  unquestioned.  Labor  legislation  was  the  most 
conspicuous  manifestation  of  a  new  era  of  regulation  of 
private  business.  The  new  legislation  was  in  many 
respects  experimental  and  badly  worked  out;  some  of  it 
was  premature.  Legislative  methods  failed  to  command 
that  degree  of  popular  confidence  which  would  be  willing 
to  dispense  with  further  control  if  such  control  was 
available,  and  in  America  it  was.  The  conservative 
sense  of  the  community  demanded  a  judicial  check  which 
had  to  operate  under  the  guise  of  legal  and  not  of 


JUDICIAL  DOCTRINES  21 1 

political  control.  The  idea  of  a  constitutional  policy  and 
corresponding  rights  and  limitations  was  thus  readily 
entertained,  not  only  by  the  courts,  but  by  the  great 
preponderance  of  public  and  professional  opinion,  and  to 
a  very  considerable  extent  this  opinion  prevails  today. 

This  point  of  view  should  control  the  interpretation  of 
much  that  goes  hi  America  under  the  name  of  constitu- 
tional law.  The  decisions  enforcing  so-called  inherent 
limitations  are  among  the  most  loosely  reasoned  in  our 
entire  case  law.  There  is  much  talk  about  inalienable 
rights  on  the  one  side  and  about  the  police  power  on  the 
other;  as  the  case  may  be,  either  denunciation  of  the 
arbitrary  will  of  the  legislature,  or  disclaimer  of  judicial 
superiority  of  judgment  or  power  of  control;  practically 
the  only  criterion  that  is  suggested  is  that  of  reason- 
ableness. From  the  point  of  view  of  legal  science  it 
would  be  difficult  to  conceive  of  anything  more  unsat- 
isfactory. 

Extreme  indefiniteness,  however,  appears  in  the  light 
of  a  wise  avoidance  of  irrevocable  conclusions,  if  we  apply 
to  this  phase  of  constitutional  law  as  a  whole  the  test 
of  political  performance.  The  greatest  defects  of  the 
decisions  from  a  legal  standpoint  constitute  their  saving 
grace.  No  constitutional  right  is  asserted  without  placing 
in  convenient  juxtaposition  a  saving  on  behalf  of  the 
public  welfare.  No  rule  has  been  formulated  in  such  a 
manner  as  to  embarrass  an  honorable  retreat,  and  if  an 
inconvenient  precedent  is  encountered  there  is  little 
hesitation  in  overruling  it.  Even  the  brief  period  of 


212  STANDARDS  OF  AMERICAN  LEGISLATION 

thirty  years,  during  which  the  courts  have  enforced 
constitutional  policies,  has  been  sufficient  to  demonstrate 
that  any  apprehension  of  a  permanent  hindrance  on  their 
part  to  any  phase  of  legislative  progress  is  groundless. 

Indeed,  there  is  rather  reason  to  fear  that  the  courts 
will  exercise  the  guardianship  committed  to  them  with 
less  confidence  and  boldness  than  is  desirable.  A  legis- 
lative body,  in  pursuing  some  particular  social  or  economic 
policy  demanded  by  popular  clamor  for  the  attainment  of 
tangible  and  immediate  objects,  will  easily  be  inclined  to 
underestimate  and  neglect  the  larger  policy  of  individual 
right  and  liberty  which  at  one  time  was  believed  to  be 
safest  in  its  hands.  For  the  protection  of  these  larger 
and  more  permanent  interests,  so  essential  to  the  main- 
tenance of  our  institutions,  we  naturally  look  to  the  courts 
which  by  constitution  and  habit  are  best  qualified  to 
appreciate  the  claims  of  individual  right.  There  is  a 
constant  demand  for  restricting  the  entrance  to  callings 
and  professions  by  license  requirements.  Plausible 
grounds  are  usually  not  wanting,  and  the  valuable  policy 
of  freedom  of  vocation,  slowly  won  in  a  long  struggle  for 
industrial  emancipation,  is  very  likely  to  be  overlooked. 
Such  a  policy  must  look  to  the  courts  for  support.  A 
similar  situation  arises  with  regard  to  the  tendency  toward 
the  creation  of  large  discretionary  administrative  powers. 
In  many  cases  the  courts  have  only  been  too  willing  to 
relinquish  that  guardianship  which  they  have  claimed  so 
freely  when  it  was  a  question  of  resisting  labor  legislation. 
Yet  on  the  whole  our  main  reliance  for  the  perpetuation 


JUDICIAL  DOCTRINES  213 

of  ideals  of  individual  liberty  must  be  in  the  continued 
exercise  of  the  judicial  prerogative. 

Upon  a  larger  view,  then,  of  our  constitutional  his- 
tory we  are  impressed  with  the  fact  that  hi  assigning 
a  controlling  function  to  the  courts  we  have  after  all 
not  altered  the  universal  character  of  constitutional 
issues:  in  America  as  well  as  in  other  countries  they 
are,  in  the  mam,  issues  of  power  and  policy.  Com- 
pared with  these  issues  the  question  of  the  conformity 
of  legislation  to  fundamental  principles  of  law  has 
engaged  the  attention  of  the  courts  only  to  a  relatively 
slight  extent,  and  their  decisions  offer  little  hi  the  way 
of  enlightening  discussion  of  canons  of  justice  applicable 
to  legislation. 

This  is  after  all  what  a  true  appreciation  of  the  consti- 
tutional functions  of  courts  should  lead  us  to  expect.  It 
is  unlikely  that  a  legislature  will  otherwise  than  through 
inadvertence  violate  the  most  obvious  and  cardinal 
dictates  of  justice;  gross  miscarriages  of  justice  are 
probably  less  frequent  hi  legislation  than  they  are  in  the 
judicial  determination  of  controversies.  The  courts  have 
therefore  had  little,  if  any,  occasion  to  set  up  elementary 
canons  of  justice  in  opposition  to  legislation.  Nor  have 
they  had  occasion  to  elaborate  those  higher  standards  of 
greater  refinement  and  complication  in  which  imperfectly 
considered  legislation  is  not  unlikely  to  be  deficient.  For 
the  constitutional  power  of  courts  over  statutes  is  exercised 
only  by  annulling  them  altogether;  and  to  attempt  to 
apply  this  power  by  reason  of  mere  imperfection  would 


214  STANDARDS  OF  AMERICAN  LEGISLATION 

play  havoc  with  legislation.  No  merely  negative  power 
will  ever  perform  a  standardizing  function. 

Perhaps  a  somewhat  more  constructive  influence  upon 
legislation  might  be  exercised  by  the  courts  through  their 
function  of  constitutional  and  statutory  interpretation, 
and  it  will  be  necessary  to  dwell  in  its  proper  place  upon 
that  aspect  of  judicial  power. 

But  above  all  it  is  necessary  to  realize,  not  only  that 
constitutional  law  as  represented  by  judicial  decisions 
does  not  furnish  us  with  a  body  of  principles  of  legislation, 
but  that  it  does  not  even  indicate  fully  and  clearly  the 
nature  and  scope  of  these  principles.  It  is  indeed  from 
the  combined  legislative,  administrative,  and  judicial 
experiences  that  we  gather  the  problems  of  legislation 
and  their  solution,  but  the  solution  does  not  proceed  from 
or  rest  upon  judicial  authority,  but  must  be  worked  out 
upon  the  basis  of  a  discipline  hardly  recognized  either  in 
England  or  in  this  country — an  independent  science  of 
jurisprudence. 


CHAPTER  VI 
THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION 

By  contrast  with  the  common  law,  every  proposition 
of  which~claims  lo  be  a  dictate  6T"reason  and  logic, 
statute  law  is  conventional  i",  thp  «**"««*  that  in  many 
cases  it  merely  represents  the  legislator's  free  choice 
between  a  number  of  different  possible  and  perhaps 
equally  reasonable  provisions.  The  natural  desire  to 
avoid  the  charge  of  arbitrariness  hi  legislation  produces  a 
strong  tendency  to  follow  precedents,  and,  in  consequence, 
a  certain  uniformity  of  provision  with  regard  to  relatively 
indifferent  matters  which  has  nothing  to  do  with  principle, 
and  which  is  yet  likely  to  impose  itself  upon  legislation 
with  more  than  the  force  of  principle.  In  every  jurisdic- 
tion it  is  possible  to  cite  instances  of  this  kind  in  which 
the  mere  force  of  habit  supports  practices  which  have 
nothing  else  to  recommend  them;  witness  the  usual 
clause  at  the  end  of  a  New  York  statute:  "this  act  shall 
take  effect  immediately,"  or  the  requirement  which  is 
common  in  Illinois  that  the  governor  approve  vouchers 
for  expenses  which  are  charges  against  appropriations. 
Such  practices  offer  little  general  interest. 

So  long  as  legislation  claims  to  produce  law  it  must  also 
strive  to  realize  hi  its  product  that  conformity  to  principle 
from  which  law  derives  its  main  sanction  and  authority. 

The  difference  between  common  law  and  statute  law  in 

215 


216  STANDARDS  OF  AMERICAN  LEGISLATION 

this  respect,  however,  is  that  while  the  data  of  the 
common  law  are  fixed  and  beyond  conscious  and  deliberate 
transmutation,  those  of  legislation  vary  with  varying 
purposes  and  conditions.  While  principle  in  common  law 
simply  stands  for  logic,  reason,  and  established  policy,  its 
meaning  in  legislation  is  far  more  complex.  We  can 
hardly  say  more  to  begin  with  than  that  it  means  a 
settled  point  ot  view,  and  any  closer  analysis  requires 
careful  differentiation. 

At  the  opposite  ends  of  the  various  classes  of  con- 
siderations that  move  the  legislator  we  should  place  con- 
stitutional  requirement  and  policy.  The  constitutional 
rule  must  be  obeyed  no  matter  what  opinion  may  be 
entertained  of  its  wisdom,  and  is  thus  withdrawn  from 
argument  except  for  the  purpose  of  interpretation.  It 
may  be  absolutely  conventional,  as,  e.g.,  in  the  require- 
ment and  wording  of  an  enacting  clause,  or  convention 
and  principle  may  be  mixed,  as  in  specifying  brief  terms 
of  office,  or  it  may  state  a  principle  pure  and  simple,  as 
in  the  rule  against  ex  post  facto  laws  or  against  double 
jeopjuxly.  The  mandatory  character  of  the  rule  is 
affected  by  these  differences  only  in  the  varying  latitude 
of  constitutional  construction. 

Policy,  on  the  other  hand,  represents  the  freedom  oL 
legislative  discretion.  No  matter  what  array  of  facts 
and  arguments  we  may  bring  to  bear  upon  certain 
problems,  we  must  recognize  that  in  the  present  state  of 
human  thought  and  knowledge  their  determination  is 
controlled  by  considerations  which  lie  beyond  the  forum 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          217 

of  compelling  reason,  and  depends  upon  fundamental 
differences  in  habits  and  ideals.  Strict  or  liberal  divorce 
laws,  high  license  or  prohibition,  free  trade  or  protection, 
free  or  regulated  business,  the  limits  of  combination  and 
of  competition,  form  or  informality  in  legal  acts — these 
constitute  issues  with  regard  to  which  opinions  of  men  will 
continue  to  differ,  and  which  for  the  present  must  there- 
fore be  left  to  the  domain  of  policy. 

Contrast  with  these  the  legislative  attitude  toward 
polygamy,  toward  monopoly,  toward  gambling,  or  toward 
find_  tftp***  letter  policies  as  firmly 
established  as  any  common-law  principle.  The  common 
law  embodies,  in  addition  to  reason  and  logic,  also  a 
great  deal  of  policy,  as,  e.g.,  the  pronounced  favor  to  the 
accused  hi  criminal  procedure.  That  policy  has  in 
America  been  transformed  into  a  constitutional  rule,  as 
has  been  the  more  modern  policy  of  freedom  of  thought 
and  of  religion;  there  are  even  instances  in  which  highly 
controversial  policies  have  been  enacted  into  constitu- 
tional provisions  in  order  to  withdraw  them  from 
legislative  change;  witness  the  prohibition  clauses  in  the 
constitutions  of  Kansas  and  Oklahoma. 

Where  this  is  done,  it  is  not  inaccurate  to  say  that 
policy  has  been  changed  into  principle;  we  thgn  simply 
attribute  to  principle  the  meaning  of  settled  policy.  In 
this  sense  any  policy  adopted  bythe  legislature  becomes 
thejmnciple  of  the  stfrtiiteeTTarteH  t.n  effectuate  that 
policy— principle  to  the^extent  that  it  controls  or  should 
control  the  details  of  provisions  and  their  application  and 


2i8  STANDARDS  OF  AMERICAN  LEGISLATION 

interpretation.  Considering  the  statute  without  refer- 
ence to  these  details,  we  should  of  course  realize  that 
we  deal  with  legislative  policies  and  not  with  prin- 
ciples of  legislation  hi  the  more  specific  sense.  The 
legislative  determination  of  policies  is  generally,  and  in  a 
sense  justly,  regarded  as  a  matter  of  free  discretion;  in 
any  event  the  considerations  guiding  that  discretion  are 
ordinarily  not  counted  as  falling  within  the  province  of 
jurisprudence. 

Principle  as  applied  to  legislation,  in  the  jurisprudential 
sense  of  the  term,  thus  does  not  form  a  sharp  contrast  to 
either  constitutional  requirement  or  policy,  for  it  may  be 
found  in  both;  but  it  rises  above  both  as  being  an  ideal 

attribute  demanded  by  the  claim  of  statute  law  to  be 

i    .  ..  — — • 

respected  as  a  rational  ordering  of  human  affairs;  it  may 
be  a  proposition  of  logic,  of  justice,  or  of  compelling 
expediency;  in  any  event  it  is  something  that  in  the 
long  run  will  tend  to  enforce  itself  by  reason  of  its  inherent 
fitness,  or,  if  ignored,  will  produce  irritation,  disturbance, 
and  failure  of  policy.  It  cannot,  in  other  words,  be 
violated  with  impunity,  which  does  not  mean  that  it 
cannot  be  or  never  is  violated  in  fact.  Perhaps  the  best 
criterion  of  principle  is  that  reasonable  persons  can  be 
brought  to  agree  upon  the  correctness  of  a  proposition, 
though  when  they  are  called  upon  to  apply  it  their  inclina- 
tions or  prejudices  may  be  stronger  than  their  reason. 

The  question  is  whether  our  legal  science  has  developed 
an  adequate  system  of  principles  of  legislation  in  this 
sense. 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          219 

Now  and  then  our  constitutions  specifically  express  a 
principle,  so  particularly  with  regard  to  criminal  legis- 
lation, the  rule  against  double  jeopardy,  and  the  rule 
against  retroactive  operation  (ex  post  facto  laws);  but  the 
bulk  of  constitutional  provisions  crystallize  historic  or 
modern  policies  and  not  permanent  principles. 

Where  legislation  is  attacked  in  court  as  violating 
fundamental  principle,  reliance  is  always  placed  upon 
the  Fourteenth  Amendment,  less  commonly  upon  the 
equal-protection  clause  than  upon  the  due-process  clause. 
So  far  as  equality  means  absence  of  arbitrary  discrimina- 
tion, it  is  almost  undistinguishable  from  due  process.  So 
far  as  it  is  opposed  to  class  legislation,  a  distinction  should 
be  made:  equal  justice  between  classes  is  of  the  essence 
of  justice,  and  if  in  practice  justice  is  not  the  same  for 
rich  and  poor  this  is  merely  an  inevitable  effect  of 
economic  conditions  which  it  is  beyond  the  power  of  the 
law  to  remedy;  equal  legislation  for  all  classes,  however, 
so  far  as  a  definite  meaning  can  be  attached  to  the  idea, 
is  more  in  the  nature  of  a  policy  than  of  a  principle,  and 
cannot  be  said  to  be  firmly  established.  There  remains, 
then,  due  process  of  law  as  the  main,  if  not  the  sole, 
guaranty  of  principle  in  legislation. 

Due  process  is  so  general  a  phrase  that  for  its  content 
we  turn  to  judicial  interpretation.  The  Supreme  Court 
refers  us  to  a  gradual  process  of  judicial  inclusion  and 
exclusion  (Davidson  v.  New  Orleans,  96  U.S.  97),  and  de- 
clines a  compendious  definition,  which,  indeed,  if  it  were 
to  claim  authoritative  value,  would  be  worse  than  no 


220  STANDARDS  OF  AMERICAN  LEGISLATION 

definition  at  all.  In  the  enormous  number  of  decisions, 
however,  that  have  applied  the  test  of  due  process  to 
legislation  we  mightjustly  expert  jjifter  a  lapse  of  forty 
beginning  in  the  working  oi|t  of  a. 


of  principles.  Unfortunately,  opinions  in  constitutional 
cases  rarely  go  beyond  rhetoric  and  generalities;  and 
quotations  from  similarly  elusive  pronouncements  take 
the  place  of  searching  analysis.  We  are  referred  to 
reasonableness  as  a  criterion  of  validity,  as  if  "reason- 
able" were  not  the  very  negation  of  scientific  pre- 
cision. Whatever  may  be  the  merit  or  demerit  of  the 
actual  decisions  upon  the  validity  of  legislation,  the 
theory  of  constitutional  law  as  found  in  the  opinions 
interpreting  due  process  of  law  is  perhaps  the  least-Salis- 
factory  department  r>fA™P.rT£jiri  j^nVpn^ran^  \ye 
ought  to  know7  to  what  extent  due  process  means  definite 
principles,  and  to  that  extent  these  principles  should  be 
judicially  stated;  and  we  ought  to  know,  on  the  other 
hand,  to  what  extent  principles  are  beyond  judicial 
enforcement  and  must  be  left  to  legislative  method  and 
practice. 

If  in  the  following  an  attempt  will  be  made  to  give  to 
the  idea  of  principle  in  legislation  a  more  definite  content 
than  it  has  hitherto  received,  it  can  of  course  be  only  by 
way  of  outline  and  illustration.  But  this  will  be  suffi- 
cient, if  it  be  possible  at  all,  for  the  purpose  of  demon- 
strating the  defects  of  present  doctrine  and  the  possibilities 
of  scientific  legislation.  Much  of  what  has  been  said 
before  in  the  course  of  this  essay  was  intended  to  bring 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          221 

out  and  illustrate  what  are  believed  to  be  true  principles 
of  legislation,  and  consequently  the  following  outline 
will,  hi  part  at  least,  be  merely  hi  the  nature  of  a  recapitu- 
lation of  previous  statements  and  conclusions. 

Prohibition. — The  previous  discussion  of  this  subject1 
should  have  made  it  clear  that  it  is  a  true  principle  of 
legislation  that  a  remote  or  conjectural  danger,  or  the 
danger  of  fraud  or  abuse,  does  not  justify  the  entire 
suppression  of  a  legitimate  and  valuable  interest.  That 
interests  of  no  intrinsic  economic  utility  may  be  sacrificed 
in  the  exercise  of  the  police  power  is  demonstrated  by 
the  course  of  prohibition  legislation;  the  consumption  of 
intoxicating  liquor  represents  normally  only  pleasure, 
indulgence,  and  license,  which  are  not  generally  counted 
as  assets  of  positive  value.  Where  intoxicating  liquor 
serves  mechanical,  medicinal,  or  sacramental  purposes,  it 
represents  an  essential  interest  which  is  respected  in 
legislative  practice. 

The  force  of  the  principle  of  conserving  genuine  values 
is  demonstrated  by  the  history  of  oleomargarine  legisla- 
tion and  of  legislation  prohibiting  dealings  in  futures  and 
options  as  set  forth  hi  another  connection.  It  will  be 
remembered  that  the  Supreme  Court  of  the  United  States 
recognized  the  validity  of  prohibitions  which  the  better 
sense  of  the  community  finally  repudiated  as  untenable. 
Only  a  theory  of  judicial  infallibility  can  continue  to 
treat  prohibitions  thus  discredited  as  legitimate  forms  of 
exercise  of  legislative  power.  Against  judicial  opinions 
which  fail  to  state  clear  issues,  which  are  hesitating  in 

'Pp.  84-95. 


222  STANDARDS  OF  AMERICAN  LEGISLATION 

their  expressions,  and  which  are  qualified  in  subsequent 
cases,  we  set  the  striking  consensus  of  widely  separated 
jurisdictions  in  abandoning  policies  which  were  impru- 
dently adopted  and  which  experience  proved  to  be 
intolerable,  and  we  cannot  doubt  on  which  side  we  should 
find  the  true  principle  of  legislation. 

The  principle  is,  indeed,  one  which  commends  itself  by 
its  good  sense,  and  which  any  a  priori  theory  of  legislation 
would  readily  accept.  It  needs  to  be  emphasized  merely 
because  it  failed  to  receive  the  supreme  judicial  sanction. 
And  while  it  is  in  a  sense  obvious  and  commonplace,  it 
may  still  be  claimed  for  the  principle  that  it  has  a  more 
tangible  content  than  mere  phrases  about  liberty  and 
property,  reasonableness  and  the  public  welfare. 

Indefinite  penal  provisions. — The  history  of  the  criminal 
enforcement  of  the  Sherman  Anti-trust  Act  should  prove 
another  principle,  namely,  that  penal  legislation  ought  to 
avoid  elastic  prohibitions  where  the  difference  between 
the  exercise  of  a  valuable  right  and  the  commission  of  a 
proposed  criminal  offense  is  entirely  one  of  degree  and 
effect.  As  interpreted  in  the  Standard  Oil  and  the 
Tobacco  cases,  the  Act  of  1890  creates  a  crime  of  monopo- 
lizing an  industry  which  no  one  as  yet  has  been  capable 
of  defining.  Whether  an  organization  like  the  Harvester 
Company  is  a  contribution  to  the  economic  efficiency  of 
the  nation  or  is  a  violation  of  the  law  of  the  land  is  a 
question  which  the  Supreme  Court  takes  years  to  make 
up  its  mind  on,  and  the  erroneous  private  decision  of 
which  subjects  to  the  risk  of  fine  and  imprisonment. 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          223 

The  United  States  Supreme  Court  says  that  the  act 
is,  notwithstanding  this,  constitutional  (Nash  v.  U.S.,  229 
U.S.  373) ;  again,  however,  it  must  be  permitted  to  vouch 
history  as  a  witness.  The  criminal  enforcement  of  the 
Sherman  Act  has  been  an  absolute  failure;  a  few  fines 
have  been  imposed  and  one  imprisonment  of  four  hours' 
duration  in  the  custody  of  the  sheriff  has  been  suffered; 
in  its  strongest  case — that  of  the  National  Cash  Register 
Company — the  government  has  been  defeated;  and 
what  success  it  has  had  in  enforcing  the  act  has  been 
through  the  power  of  proceeding  in  equity,  which  was  an 
afterthought  and,  as  it  were,  an  accident  hi  the  history  of 
the  preparation  and  enactment  of  the  law.  And  even 
this  phase  of  the  law  is  likely  to  be  superseded  by  the 
more  specific  methods  provided  for  by  the  legislation  of 
1914.  The  draconic  penalties  of  state  anti- trust  laws  have 
remained  dead  letters. 

Yet  in  deciding  the  Nash  case  the  Supreme  Court  was 
confronted  with  the  fact  that  the  Sherman  Act  after  all 
expressed  merely  in  statutory  form  the  vague  prohibitions 
of  the  common  law  of  conspiracy.  It  may  be  that 
nothing  that  the  common  law  sanctions  can  be  a  denial  of 
due  process;  if  so,  it  follows  that  the  constitution  is  not 
an  adequate  safeguard  of  the  observance  of  true  principles 
of  legislation.  The  indefinite  crimes  of  the  common  law 
clearly  violate  these  principles.  An  unspecified  crime  is 
entirely  inconsistent  with  the  requirement  of  specific 
charges  in  indictments,  the  principle  being  the  same  hi 
both  cases.  The  strong  demand  for  a  codification  of  the 


224  STANDARDS  OF  AMERICAN  LEGISLATION 

criminal  law  both  in  America  and  on  the  continent  of 
Europe  was  largely  inspired  by  the  horror  of  undefined 
offenses  which  also  found  expression  in  the  Fourth  Article 
of  the  French  Declaration  of  Rights  of  1789.  And 
practical  experience  shows  that  except  in  cases  of  strong 
popular  prejudice  the  sense  of  the  injustice  of  the  law  will 
lead  both  juries  and  courts  to  minimize  or  neutralize  its 
effect,  so  that  it  will  operate,  if  at  all,  only  in  cases  where 
constitutional  protection  would  be  most  urgently  needed. 

It  has  been  said  that  the  strength  of  a  statute  lies  in 
its  general  phrases  and  terms,  and  there  is  truth  in  the 
statement  if  properly  understood  and  applied.  That 
is  to  say,  a  general  phrase  leaves  to  court  or  jury,  as  the 
case  may  be,  a  much  greater  latitude  of  interpretation 
than  a  specific  term  does. 

A  pure  enabling  act  of  a  civil  character,  like  the  grant 
of  a  charter  power,  is  more  desirable  to  the  grantee  of  the 
power  if  it  is  couched  hi  general  terms.  The  same  is 
true  of  an  act  granting  a  civil  remedy,  if  the  plaintiff  can 
count  on  the  sympathy  of  court  and  jury;  thus  in  Illinois 
the  miners  objected  to  the  specification  of  safeguards  in 
the  mining  law  because  it  diminished  their  chances  of 
recovery.  And  it  will  be  observed  that  while  the  criminal 
clauses  of  the  Sherman  Act  have  remained  unenforced, 
no  contrivance  has  succeeded  in  escaping  condemnation 
under  the  civil  proceedings  brought  in  equity  by  the 
government.  However,  what  in  civil  proceedings  is  an 
advantage  to  the  plaintiff  is  a  disadvantage  to  the 
defendant,  and  vague  and  undefined  statutory  rights 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          225 

which  burden  a  third  party,  while  they  may  be  desirable 
from  the  point  of  view  of  the  party  to  whom  the  right  is 
given,  be  it  private  party  or  government,  remain  objec- 
tionable from  the  point  of  view  of  general  justice.  In  the 
long  run  this  objection  may  be  likewise  fatal,  and  it  is 
very  probable  that  the  more  specific  provisions  of  the 
legislation  of  1914  will  practically  put  the  Sherman  Act 
out  of  operation.  In  a  criminal  statute,  however,  the 
generality  of  the  prohibition  is  not  only  unjust  to  the 
defendant,  but  disadvantageous  to  the  prosecuting 
government,  not  only  because  it  will  make  convictions 
difficult,  but  because  it  will  diminish  the  vigor  and  con- 
fidence of  official  enforcement.  In  this  latter  respect  the 
history  of  the  Sherman  Act  affords  no  fair  example, 
considering  the  enormous  special  efforts  that  have  been 
made  through  large  appropriations  and  political  pressure 
to  initiate  prosecutions.  The  experience  of  factory 
legislation  is  more  typical,  and  here  the  testimony  of 
administrative  experience  is  strong  that  general  require- 
ments cannot  be  criminally  enforced. 

THE   CORRELATION   OF   PROVISIONS 

The  correlation  of  distinct  and  separable  provisions 
makes  a  system  out  of  a  conglomerate  of  rules,  while  the 
correlation  of  necessarily  interdependent  provisions  is  an 
imperative  requirement  of  logic,  the  violation  of  which 
must  nullify  the  offending  statute  in  whole  or  in  part. 
The  legendary  Irish  act  which  provided  that  the  material 
of  an  existing  prison  should  be  used  in  the  erection  of  a 


226  STANDARDS  OF  AMERICAN  LEGISLATION 

new  one,  and  that  the  prisoners  should  continue  to  be 
confined  in  the  old  prison  until  the  new  one  should 
be  completed,  illustrates  the  fatal  inconsistency  against 
which  even  the  omnipotence  of  Parliament  cannot  pre- 
vail. 

If  the  constitution  of  Oklahoma  (IX,  46)  prohibits 
discrimination  between  persons  or  sections  for  the  pur- 
pose of  destroying  competition  by  forbidding  sales  of 
commodities  at  a  lower  rate  in  one  section  than  in  another, 
it  clearly  fails  to  deal  effectually  with  discrimination 
between  persons  hi  the  same  section,  for  the  restricted 
specification  of  means  necessarily  qualifies  the  wider 
substantive  provision.  If  the  statute  of  wills  of  Illinois 
permits  the  signing  of  a  will  by  another  for  the  testator 
only  if  it  be  done  by  direction  and  in  the  presence  of  the 
testator,  and  yet  permits  probate  of  the  will  upon  proof 
of  the  attesting  witnesses  that  the  testator  acknowledged 
the  signature  as  his,  it  allows  the  requirement  that  the 
vicarious  signing  be  done  in  the  presence  of  the  testator  to 
be  neutralized  or  nullified  by  a  misstatement  of  the  latter. 
Inconsistencies  like  these  are  not  fatal  to  the  entire 
statute,  but  merely  to  one  of  the  two  inconsistent  pro- 
visions. They  need  no  further  comment. 

It  is  the  lack  of  correlation  which  does  not  amount  to 
direct  and  fatal  inconsistency  of  terms  that  constitutes  a 
problem  in  jurisprudence.  The  common  law,  indeed,  is 
necessarily  free  from  verbal  inconsistency,  since,  being 
unwritten,  its  rules  are  not  formulated  in  authoritative 
terms.  The  common  law  is,  however,  also  relatively  free 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          227 

from  the  inconsistency  of  separable  provisions,  since  it  is 
built  up  by  reason  and  analogy,  and  disharmony  is  a 
legitimate  ground  for  rejecting  a  rule  as  unsound.  This 
does  not  mean  that  the  demonstration  of  disharmony  in 
spirit  in  the  widest  sense  can  be  relied  upon  to  defeat 
settled  rules  of  common  law.  It  is  inconsistent  that  the 
state  should  hold  corporations  to  the  rule  respondeat 
superior  and  claim  immunity  from  liability  for  the  wrong- 
ful acts  of  its  own  servants,  yet  there  is  no  inconsistency 
of  operation,  and  conceivably  a  disharmony  of  this  kind 
might  be  justified  on  special  grounds  of  policy.  Perhaps 
the  grossest  common-law  instance  of  lack  of  correlation 
is  to  be  found  in  the  husband's  right  to  appropriate  the 
entire  personalty  of  his  wife,  coupled  with  his  power  to 
will  that  same  personalty  to  strangers  and  leave  her 
penniless.  This  can  be  explained  only  by  the  fact  that 
the  adjustment  of  property  rights  between  husband  and 
wife  belonged  to  the  three  distinct  jurisdictions  of  the 
courts  of  common  law,  the  court  of  equity,  and  the 
ecclesiastical  courts,  no  one  of  which  had  entire  control  or 
responsibility,  and  that  in  the  seventeenth  century,  when 
the  free  power  of  testamentary  disposition  came  to  be 
recognized,  the  common  law  had  entered  upon  a  period  of 
stagnation,  which  prevented  the  necessary  readjustments 
called  for  by  this  innovation.  The  operation  of  the  rule 
of  correlation  may,  however,  be  illustrated  from  the  law 
of  parent  and  child.  If  the  father  has  the  right  to  appro- 
priate the  earnings  of  the  minor  child,  it  must  necessarily 
follow  that  he  is  under  legal  duty  to  support  the  child;  a 


228  STANDARDS  OF  AMERICAN  LEGISLATION 

doctrine  that  would  deny  the  father's  liability  must  also 
deny  his  right  to  earnings.  It  is  mere  thoughtlessness 
if  the  duty  of  support  is  sometimes  discussed  without 
reference  to  the  right  to  earnings,  and  the  actual  state  of 
the  law  is  in  accordance  with  this  principle  of  correlation. 
Similarly,  the  common  law  places  upon  the  husband  at 
least  the  duty  to  support  his  wife,  in  return  for  his  right 
to  appropriate  her  property  or  income. 

When  the  legislature  made  the  wife  the  mistress  of  her 
own  property  or  income,  it  should  have  placed  upon  her 
a  correlative  obligation  to  contribute  to  the  support  of 
household  and  family.  This  has  been  done  by  the 
German  Civil  Code,  but  not  by  American  or  English 
married  women's  acts.  We  have  thus  the  anomaly  that 
a  rich  wife  may  obtain  a  divorce  from  a  poor  husband  for 
non-support  where  that  is  a  ground  for  divorce.  Similar 
results  may  happen  in  other  cases  in  which  a  statute 
changes  one  common-law  rule  without  dealing  with 
related  rules;  the  generally  accepted  principles  of  stat- 
utory construction  are  not  liberal  enough  to  supply  the 
defect,  and  a  disharmony  results. 

The  lack  of  correlation  may  be  due  to  the  fact  that 
the  various  provisions  of  statutes  do  not  harmonize  with 
one  another,  or  to  the  fact  that  the  legislature  has  failed 
to  supplement  the  provisions  of  a  statute  by  others 
which  are  necessary  for  their  satisfactory  or  just  operation. 
The  former  defect  is  more  obvious  and  easier  to  avoid 
than  the  latter.  The  one  as  well  as  the  other  may  in 
appropriate  cases  be  remedied  by  statutory  construction, 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          229 

and  the  extent  to  which  this  remedy  will  be  applied  will 
depend  upon  the  degree  to  which  the  courts  realize  and 
are  impressed  with  the  existence,  the  soundness,  and  the 
importance  of  the  principle  of  correlation. 

The  entire  problem  is  well  illustrated  by  a  number  of 
cases  decided  in  recent  years  by  the  Supreme  Court  of  the 
United  States  and  other  American  courts. 

i .  The  doctrine  of  the  Abilene  case  (Texas  &•  P.  R.  Co.  v. 
Abilene  Cotton  Oil  Co.,  204  U.S.  426,  1907). — The  Inter- 
state Commerce  Act  of  1887  establishes  two  important 
principles:  that  of  reasonableness  of  rates  and  that  of 
non-discrimination,  i.e.,  of  equality  of  rates  under  similar 
conditions.  Carriers  are  required  to  publish  schedules  of 
rates.  The  Interstate  Commerce  Commission  is  author- 
ized to  grant  relief  against  unreasonable  rates,  and  the 
act  expressly  provides  that  a  person  claiming  to  be 
damaged  by  a  common  carrier  may  either  make  com- 
plaint to  the  Commission  or  may  bring  suit  for  recovery 
of  damages  for  which  the  carrier  may  be  liable  under  the 
provisions  of  the  act  (sec.  9);  and  again  (sec.  22),  that 
nothing  contained  in  the  act  shall  in  any  way  abridge  or 
alter  remedies  now  existing  at  common  law  or  by  statute, 
but  that  the  provisions  of  the  act  are  in  addition  to  such 
remedies.  When  in  the  above  case  a  shipper  claiming  to 
be  overcharged  brought  an  action  at  common  law  against 
the  carrier  to  recover  the  amount  paid  in  excess  of  a 
reasonable  rate,  the  Supreme  Court  held,  notwithstanding 
the  very  explicit  provision  just  cited  of  the  statute,  that 
no  common-law  action  could  be  brought  before  application 


230  STANDARDS  OF  AMERICAN  LEGISLATION 

made  to  the  Commission  to  establish  the  extent  of  over- 
charge. The  same  rule  was  subsequently  applied  to  a 
criminal  prosecution  instituted  by  the  government  prior 
to  administrative  action  by  the  Commission .  (U.S.  v. 
Pacific,  etc.,  Co.,  228  U.S.  106,  1913).  The  court  found 
two  equally  dominant  principles  in  the  act,  that  of  equal 
rates  and  that  of  reasonable  rates,  and  both  had  as  far  as 
possible  to  be  maintained.  If  shippers  were  at  liberty  to 
sue  at  common  law,  the  question  of  reasonableness  would 
as  a  question  of  fact  go  to  a  jury,  and  different  juries 
might  find  different  rates,  with  the  result  that  the  rule  of 
equality  might  be  destroyed  and  published  rates,  per- 
haps through  verdicts  reached  by  collusion,  be  departed 
from,  whereas  administrative  correction  would  act  upon 
all  cases  in  like  manner.  In  this  case,  then,  the  various 
purposes  of  the  act  are  correlated  to  each  other  by  a 
judicial  construction  which  has  to  override  the  apparently 
plain  provision  of  the  act  in  favor  of  the  common-law 
remedy;  the  principle  of  correlation,  in  other  words, 
controls  the  construction  of  the  act  entirely.  In  no 
other  case  is  the  principle  so  emphatically  recognized. 
Great  interest  also  attaches  to  the  plain  implication  that 
the  operation  of  the  common-law  remedy  negatives  the 
idea  of  equal  operation — a  remarkable  reflection  upon 
the  idea  of  equal  justice  under  the  regime  of  jury  verdicts. 
2.  The  traffic  agreement  cases. — The  Supreme  Court  of 
the  United  States  has  not  always  been  so  amenable 
to  arguments  urging  correlation  and  consistency.  The 
Interstate  Commerce  Act  preceded  the  Sherman  Anti- 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          231 

trust  Act  by  three  years.  The  former  act  was  believed 
to  have  brought  a  temporary  and  tentative  solution  of 
the  railroad-rate  problem,  and  in  1890  no  disposition  to 
reopen  it  had  been  manifested.  If  the  Commerce  Act 
had  not  dealt  specifically  with  railroad  monopolization,  it 
was  partly  because  the  monopolistic  nature  of  railroad 
transportation  was  to  a  certain  extent  inevitable,  and 
because  state  laws  on  the  whole  sufficiently  prevented 
the  consolidation  of  competing  roads.  The  "Northern 
Securities"  problem  was  a  thing  not  thought  of.  The 
Sherman  Act  was  understood  to  be  directed  against 
monopolistic  practices  and  enterprises  in  the  sale  of 
commodities,  i.e.,  in  the  domain  of  trade  and  commerce 
apart  from  railroad  transportation.  The  act  did  not  in 
terms  refer  to  railroads;  it  is  true,  however,  that  its 
terms  were  wide  enough  to  cover  transportation  as  well 
as  any  other  form  of  commerce.  Agreements  restrictive 
of  competition  had  long  been  customary  among  railroad 
companies  and  had  commonly  assumed  the  form  of 
pooling  agreements.  These  were  specifically  forbidden 
by  the  Interstate  Commerce  Act,  which  was  silent  with 
regard  to  other  agreements.  The  forbidden  pools  having 
been  discontinued,  the  Trans-Missouri  Freight  Association 
was  formed  for  the  purpose  of  establishing  and  maintain- 
ing rates  and  otherwise  securing  joint  action  in  matters 
affecting  common  interests  in  traffic  and  rate-making. 
In  January,  1892,  the  government  instituted  proceedings 
in  equity  to  have  this  association  restrained  from  con- 
tinuing its  operation.  The  Circuit  Court  and  the  Circuit 


232  STANDARDS  OF  AMERICAN  LEGISLATION 

Court  of  Appeals  held  that  the  agreement  was  not  covered 
by  the  Anti-trust  Act,  but  the  Supreme  Court  in  March, 
1897,  by  a  bare  majority  held  that  the  Sherman  Act 
applied  to  railroad  transportation  and  that  any  agree- 
ment for  the  common  establishment  and  maintenance  of 
rates,  however  beneficial  its  economic  purpose  or  effect, 
was  in  restraint  of  competition  and  therefore  forbidden 
and  unlawful.  The  decision  was  reiterated  in  the 
following  year  in  the  case  of  the  Joint  Traffic  Association 
(171  U.S.  505). 

The  dissenting  opinion  written  by  Justice,  now  Chief 
Justice,  White  relied  upon  the  inconsistency  between  the 
Anti-trust  Act  and  the  Commerce  Act.  The  Commerce 
Act  had  superseded  the  principle  of  the  competitive 
rate  by  the  principle  of  the  reasonable  rate.  Rates 
were  to  be  published,  not  to  be  departed  from,  and  not 
to  be  raised  or  reduced  until  after  notice.  Effective  com- 
petition was  thereby  rendered  impossible,  and  if  competi- 
tion as  a  regulating  factor  was  displaced,  how  could  a 
reasonable  rate  be  established  except  by  common  under- 
standing? As  Senator  Root  put  it  in  1910:  "Not  the 
mere  law  of  competition  obtains,  but  the  law  of  con- 
formity; how  is  that  to  be  reached  but  by  bringing  the 
railroads  together  either  with  a  voluntary  agreement  or 
by  force  ?" 

The  dissenting  opinion,  in  other  words,  contends  for 
what  is  here  called  the  principle  of  correlation,  and 
demands  that  it  shall  control  the  inexplicit,  if  not  ambigu- 
ous, provisions  of  the  Anti-trust  Act;  the  majority 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          233 

decision  gives  effect  to  what  it  conceives  to  be  the  intrinsi- 
cally correct  construction  of  the  Anti-trust  Act. 

Let  us  again  test  the  principle  which  the  majority 
rejects  or  denies  to  be  applicable,  by  the  criterion  of 
experience.  The  two  associations  which  the  court  de- 
clared illegal  were,  or  had  already  been,  dissolved,  but 
it  should  be  observed  that  even  before  the  dissolution, 
before  the  judicial  decision,  before  the  passage  of  the 
Sherman  Act,  the  associations  were  powerless  to  enforce 
stipulations  for  maintenance  of  rates,  for  these  being 
void  at  common  law,  nothing  short  of  positive  statutory 
sanction  would  make  them  actionable,  and  such  a  sanction 
the  Interstate  Commerce  Act  failed  to  provide.  Anti- 
trust legislation  in  America  has  not  been  enacted  to 
nullify  agreements  in  restraint  of  competition — that 
would  have  been  a  work  of  supererogation — but  to 
penalize  the  entering  into  agreements  that  might  be 
voluntarily  observed,  though  unenforceable  by  legal 
process.  To  determine  the  success  of  the  Freight 
Association  cases  we  must  therefore  ask  whether  they 
caused  joint  action  and  understanding  in  the  matter  of 
rates  to  be  considered  and  to  become  as  a  matter  of  fact 
illegal.  President  Roosevelt  in  his  message  of  Decem- 
ber 2,  1906,  quoted  from  the  Report  of  the  Interstate 
Commerce  Commission  as  follows:  "The  decisions  of  the 
United  States  Supreme  Court  in  the  Trans-Missouri  case 
and  the  Joint  Traffic  case  have  produced  no  practical 
effect  upon  the  railway  operations  of  the  country.  Such 
associations  in  fact  exist  now  as  they  did  exist  before 


234  STANDARDS  OF  AMERICAN  LEGISLATION 

those  decisions  and  with  the  same  general  effect.  In 
justice  to  all  parties  we  ought  probably  to  add  that  it  is 
difficult  to  see  how  our  interstate  railways  could  be 
operated  with  due  regard  to  the  interest  of  the  shipper 
and  the  railway  without  concerted  action  of  the  kind 
afforded  through  these  associations."  In  other  reports 
the  Commission  says:  "To  one  familiar  with  actual 
conditions  it  seems  practically  out  of  the  question  to 
establish  rates  that  are  relatively  just  without  conference 
and  agreement.  But  when  rates  have  once  been  estab- 
lished the  act  itself  requires  that  they  shall  be  observed 
until  changes  are  announced  in  the  manner  provided 
Certainly  it  ought  not  to  be  unlawful  for  carriers  to 
confer  and  agree  for  the  purpose  of  doing  what  the  law 
enjoins."1  "If  carriers  are  to  make  public  their  rates 
and  to  charge  all  shippers  the  same  rate  they  must  as 
a  practical  matter  agree  to  some  extent  with  respect  to 
these  rates."2 

President  Roosevelt  and  President  Taft  repeatedly 
urged  the  legalization  of  rate  agreements.  The  bill  for 
the  Act  of  1910  creating  the  Commerce  Court  contained 
a  section  to  that  effect,  which,  however,  did  not  become 
law.  The  prejudice  against  dropping  legal  inhibitions 
affecting  corporations  is  well  known,  and  the  attitude  of 
Congress  is  of  a  piece  with  the  unimpaired  maintenance 
of  the  Sherman  Act,  notwithstanding  the  legislation  of 
1914.  The  legalization  of  rate  agreements  would  render 
them  legally  enforceable  and  hence  more  effectual.  At 

1 12th  Report,  1898,  pp.  15,  16.  3  i^th  Report,  1900,  p.  9. 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          235 

present  they  are  not  merely  not  enforceable,  but  they  are 
supposed  to  be  illegal;  yet  everyone  knows  that  all  recent 
important  railroad  action  in  the  matter  of  rates  has  been 
joint  sectional  action,  and  that  in  the  nature  of  things  it 
could  not  be  otherwise.  In  declaring  such  joint  action 
to  be  illegal  the  Supreme  Court  has  created  what  Senator 
Root  characterized  as  an  anomaly,  an  abuse,  a  discredit 
to  our  system  of  law.  Surely  another  instance  where  a 
principle  of  legislation  has  proved  stronger  than  a  deci- 
sion of  the  Supreme  Court. 

3.  The  Pipe  Line  cases  (U.S.  v.  Ohio  Oil  Co.,  234  U.S. 
548). — Probably  in  consequence  of  a  report  made  in 
May,  1906,  by  the  Commissioner  of  Corporations  upon 
the  conditions  existing  with  regard  to  the  transportation 
of  petroleum,  Congress,  in  the  Act  of  June  29,  1906, 
amending  the  Interstate  Commerce  Act,  provided  that 
the  provisions  of  the  act  should  apply  to  corporations  or 
persons  engaged  in  the  transportation  of  oil  by  means  of 
pipe  lines,  who  should  be  held  to  be  common  carriers 
within  the  meaning  of  the  act.  Various  pipe-line  com- 
panies were  in  consequence  ordered  by  the  Interstate 
Commerce  Commission  to  file  schedules  of  rates,  and 
they  contested  the  validity  of  the  requirement.  It  had 
been  the  practice  of  these  companies  not  to  accept  oil 
produced  by  other  companies  than  the  company  owning 
the  pipe  line,  except  upon  condition  that  the  oil  should 
first  be  sold  to  them,  so  that  technically  they  were 
transporting  only  their  own  oil,  and  one  of  the  companies 
had  never  carried  any  oil  but  that  which  the  owner  of 


236  STANDARDS  OF  AMERICAN  LEGISLATION 

the  line  had  produced.  Under  these  circumstances  the 
companies  contended  that  Congress  had  no  power  to 
force  them  into  a  business  which  they  had  never  volun- 
tarily undertaken.  This  contention  found  favor  with 
the  Commerce  Court,  but  was  rejected  by  the  Supreme 
Court  as  against  the  companies  which  had  carried  oil 
produced  by  others,  the  court  holding  that  they  had 
engaged  in  the  transportation  of  oil,  and  that  the  pre- 
liminary purchase  of  the  oil  was  only  a  form  of  doing 
business,  so  that  Congress  merely  imposed  upon  carriers 
in  fact  the  obligation  of  common  carriers.  As  regards 
the  company  that  had  carried  only  its  own  oil,  the  court 
held  that  it  could  not  be  said  to  be  engaged  in  the  trans- 
portation of  oil,  and  that  the  act  therefore  did  not  apply 
to  it.  Chief  Justice  White  was  of  the  opinion  that  the 
act  could  not  be  constitutionally  made  to  apply  to  this 
latter  company.  Justice  McKenna  thought  that  Con- 
gress had  no  power  to  make  those  companies  common 
carriers  that  were  not  so  before  the  act. 

The  decision  has  a  negative  bearing  upon  the  principle 
of  correlation.  It  did  not  apparently  occur  to  any  of  the 
judges  that  the  construction  of  this  provision  might  be 
legitimately  affected  by  other  provisions  of  the  same 
act.  The  Act  of  1906  contained  what  is  known  as  the 
commodity  clause,  the  clause  forbidding  railroad  com- 
panies to  carry  any  products  or  commodities  (with 
certain  exceptions)  produced  or  owned  by  them.  With 
great  deliberation  Congress  inaugurated  the  policy  that 
the  common  carrier  should  be  exclusively  the  servant  of 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          237 

others,  in  order  that  there  might  be  no  temptation  to  use 
his  position  as  carrier  to  favor  himself  as  producer  or 
owner  to  the  disadvantage  of  competing  shippers.  This 
is  an  important  and  fundamental  policy  in  the  regulation 
of  public-service  business.  And  yet  the  government 
contended  that  Congress  in  the  same  act  forced  this 
inconsistent  relation  upon  those  who  never  theretofore 
had  sustained  it.  Even  if  special  conditions  made  it 
desirable  to  permit  and  require  producers  of  oil  who  had 
theretofore  carried  for  others,  to  continue  to  do  so,  and  to 
submit  them  to  control  and  regulation,  the  court  was 
justified  in  refusing  to  impute  to  Congress  the  incon- 
sistency of  creating  a  relation  which  in  another  part  of 
the  act  it  condemned.  The  court  as  a  matter  of  fact 
avoided  that  inconsistency,  but  without  realizing  this 
phase  of  the  problem.  Nothing  could  show  more  clearly 
how  little,  as  yet,  the  value  of  correlation  is  appreciated 
as  a  controlling  principle  of  legislation. 

4.  Illinois  warehouse  legislation. — A  striking  instance, 
on  the  other  hand,  of  the  judicial  enforcement  of  the 
principle  of  correlation  as  a  principle  controlling  not 
merely  the  construction  but  the  validity  of  legislation  is 
presented  hi  connection  with  the  regulation  of  grain 
elevators  hi  Illinois.  The  constitution  of  that  state  has 
an  article  containing  full  provisions  regarding  the  storing 
of  grain,  declaring  elevators  to  be  public  warehouses, 
requiring  weekly  statements,  giving  owners  of  grain  full 
liberty  of  examination,  and  making  it  the  duty  of  the 
General  Assembly  to  prevent  the  issue  of  fraudulent 


238  STANDARDS  OF  AMERICAN  LEGISLATION 

warehouse  receipts,  to  give  full  effect  to  the  article  of  the 
constitution,  and  to  provide  for  the  inspection  of  grain 
and  for  the  protection  of  producers,  shippers,  and 
receivers. 

The  legislature  gave  statutory  effect  to  the  specific 
requirements  of  the  constitution,  but  did  not  expressly 
impose  additional  restrictions  or  prohibitions  of  an 
essential  character  upon  the  business.  As  a  matter  of 
fact,  a  large  proportion  of  the  grain-elevator  business  in 
Chicago  was  in  the  hands  of  grain  dealers  and  owners. 
This  practice  was  attacked  by  the  Attorney- General, 
and  the  Supreme  Court  held  (Central  Elevator  Co.  v. 
People,  174  111.  203,  1898)  that  it  was  inconsistent  with 
the  fiduciary  position  of  warehousemen  that  they  should 
store  grain  of  their  own,  because  this  would  give  them  an 
undue  advantage  over  other  grain  dealers.  Before  the 
decision  of  the  lower  court  was  affirmed,  the  enactment 
of  a  statute  was  procured  relieving  warehouse  owners 
from  the  disability  thus  pronounced,  subject  to  pro- 
visions for  special  inspection  and  to  regulations  to  be 
framed  by  the  warehouse  commissioners  to  prevent  fraud, 
discrimination,  or  any  advantage  to  the  owner  over 
other  depositors  (Act  of  May  26,  1897).  This  statute 
the  Supreme  Court  declared  to  be  contrary  to  the  consti- 
tutional policy  and  therefore  void  (Hannah  v.  People, 
198  111.  77),  partly  perhaps  because  the  act  delegated 
the  function  of  reconciling  the  inconsistencies  of  the  dual 
position  to  the  warehouse  commissioners,  while  the  con- 
stitution enjoined  the  duty  of  giving  adequate  protection 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          239 

upon  the  legislature  itself.  In  any  event  the  correlation 
of  privilege  and  duty  or  restraint  in  the  conduct  of  public- 
service  business  was  here  recognized  before  Congress 
adopted  the  same  policy  by  the  commodity  clause 
of  1906. 

It  is  much  easier  to  avoid  placing  in  the  same  statute 
several  provisions  that  do  not  harmonize  with  each  other 
(which  would  reveal  the  defect  of  the  statute  on  its  face) 
than  to  succeed  hi  making  adequate  provision  for  all 
correlative  rights  and  obligations  needed  to  insure  a  just 
and  harmonious  operation  of  the  act.  It  is  the  difference 
between  positive  error  and  imperfection  due  to  omission. 
The  latter  defect  can  in  some  cases  be  remedied  by  allowing 
the  statute  to  be  controlled  or  supplemented  by  common- 
law  principles.  The  famous  controversy  whether  the 
statute  of  descent  or  of  wills  should  or  can  be  construed 
so  as  to  prevent  the  murderer  from  inheriting  from  the 
person  he  has  murdered  is  complicated  by  the  difficulty 
of  finding  a  common-law  rule  exactly  in  point.  The 
possibilities  of  construction  are  better  illustrated  by  a 
statute  of  Texas  which  required  a  corporation  discharging 
an  employee  to  furnish  him  on  demand  a  true  statement 
in  writing  of  the  cause  of  his  discharge.  The  court  held 
that  in  the  absence  of  an  express  provision  a  statement 
untrue  in  fact  cannot  in  an  action  for  libel  be  held  to  be  a 
privileged  statement  (St.  L.  6*  S.W.  R.  Co.  v.  Griffin,  154 
S.W.  583) — plainly  an  inequitable  result.  Had  the  ex- 
press provisions  of  the  statute  been  qualified  by  the 
application  of  common-law  principles,  the  new  obligation 


240  STANDARDS  OF  AMERICAN  LEGISLATION 

would  have  been  offset  by  a  correlative  privilege,  and 
better  justice  would  have  been  accomplished. 

In  many  cases,  however,  the  common  law  has  no 
principle  that  fits  a  new  statutory  situation,  but  on  the 
contrary  the  rules  of  the  common  law,  being  harmonious 
with  each  other,  disharmonize  with  the  new  statutory- 
provision.  To  do  perfect  justice  it  would  therefore  be 
necessary  to  supplement  the  provisions  of  the  statute  in 
accordance  with  its  spirit  and  purpose,  and  the  prevailing 
canons  of  statutory  construction  will  not  as  a  rule  permit 
this  to  be  done.  If  a  married  woman  is  given  by  statute 
the  control  of  her  own  property,  it  does  not  follow  as  a 
matter  of  construction  that  she  is  now  jointly  or  ratably 
liable  for  family  or  household  expenses ;  the  preponderance 
of  authority  leans  even  against  relieving  the  husband  from 
liability  for  her  torts. 

Correlation  in  labor  legislation. — It  is  this  failure  to 
perform  the  difficult  task  of  adequately  surveying  and 
covering  the  entire  aggregate  of  rights  and  obligations 
involved  in  new  legislation  which  accounts  for  much  of 
the  alleged  unreasonableness  of  modern  statutes,  and  has 
been  particularly  conspicuous  in  labor  legislation.  Recip- 
rocal obligation  is  of  the  essence  of  employment.  A 
statute  enacted  at  the  request  of  labor  interests  generally 
seeks  to  redress  some  injustice  or  grievance,  but  very 
often  the  practice  which  employers  are  forbidden  to  con- 
tinue has  some  element  of  justification  in  the  shortcom- 
ings of  labor;  and  a  mere  one-sided  prohibition  without 
corresponding  readjustments  leaves  the  relation  defective, 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          241 

with  the  balance  of  inconvenience  merely  shifted  from 
one  side  to  the  other.  Under  such  circumstances  the 
courts  are  much  inclined  to  assent  to  the  claim  that  there 
has  been  an  arbitrary  interference  with  liberty  or  a 
violation  of  due  process,  and  there  is  a  sufficient  falling 
short  of  sound  principles  of  legislation  to  make  adverse 
judicial  decisions  intelligible.  It  may  be  well  to  illus- 
trate this  by  conspicuous  examples. 

Coal-weighing  legislation. — The  value  of  coal  depends 
in  part  upon  the  size  of  the  pieces  mined,  and  this  in  turn 
depends  upon  the  skill  and  care  of  the  miner.  A  practice 
had  grown  up  in  the  coal-mining  industry  of  paying  the 
miner  for  the  coal  mined  by  him  by  weight;  but  in  order 
to  eliminate  the  inferior  coal,  the  coal  before  being 
weighed  was  sifted  by  passing  the  rejected  pieces  through 
a  screen.  The  obvious  result  was  that  the  miner  received 
no  pay  for  part  of  the  coal  mined  by  him  which  yet  had  a 
certain  market  value  and  which  was  appropriated  by 
the  mine-owner.  The  miners,  feeling  this  to  be  an 
injustice,  procured  the  enactment  of  statutes  which 
required  the  weighing  of  the  coal  without  passing  the 
same  through  a  screen.  In  Ohio  and  Illinois  these 
statutes  were  declared  unconstitutional,  the  court  of 
Illinois  relying  chiefly  upon  the  constitutional  right  of 
freedom  of  contract  (Millet  v.  People,  117  111.  294). 
Since  the  practice  sought  to  be  forbidden  involved  an 
injustice,  it  was  perhaps  unfortunate  to  emphasize  the 
constitutional  right  of  the  miner  to  submit  to  it.  The 
Ohio  court  adopted  a  wiser  line  of  argument  when  it 


242  STANDARDS  OF  AMERICAN  LEGISLATION 

pointed  out  that  one  injustice  was  simply  superseded  by 
another,  the  mine-owner  now  being  compelled  by  law  to 
pay  the  miner  irrespective  of  the  quality  of  his  work 
and  product  (Re  Preston,  63  Ohio  St.  428).  It  is  interest- 
ing to  note  the  subsequent  development  in  Ohio,  which 
appears  in  the  case  of  Rail  6°  River  Coal  Co.  v.  Yaple  (236 
U.S.  338),  decided  by  the  Supreme  Court  in  February, 
1915.  The  amended  constitution  of  Ohio  expressly 
authorized  the  legislature  to  provide  for  the  regulation 
of  methods  of  mining,  weighing,  measuring,  and  market- 
ing coal  and  other  minerals  (II,  sec.  36).  It  is  needless 
to  inquire  whether  the  old  law  would  have  been  sustained 
under  this  express  provision;  the  important  thing  is  that 
the  legislature  did  not  undertake  to  re-enact  it.  What  it 
did  was  to  refer  the  controversy  to  a  coal-mining  com- 
mission, which  recommended  a  law  which  was  enacted 
and  which  in  substance  provides  that  the  coal  as  mined 
and  weighed  shall  contain  no  greater  percentage  of  slate 
than  ascertained  and  determined  by  the  Industrial  Com- 
mission of  Ohio,  and  that  miners  and  operators  shall  agree 
for  stipulated  periods  upon  the  percentage  of  fine  coal 
and  slack  coal  allowable  in  the  output  of  the  mine.  We 
are  not  concerned  with  the  details  of  the  measure,  which 
are  technical;  sufficient  that  there  was,  as  the  Supreme 
Court  says,  "an  earnest  attempt  to  eliminate  the  objec- 
tions to  the  '  run  of  mine '  basis  of  payment  to  the  miners 
(sought  to  be  compelled  by  the  old  coal-weighing  law), 
and  to  enact  a  system  fair  alike  to  employer  and  miner." 
Obviously  the  difference  between  the  new  law  (sustained 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          243 

by  the  Supreme  Court)  and  the  old  one  is  that  the 
present  law  seeks  to  correlate  rights  and  obligations 
while  the  old  law  undertook  to  cure  one  anomaly  by 
substituting  another. 

Membership  in  labor  unions  and  the  right  of  discharge. — 
With  great,  if  not  entire,  unanimity  American  courts  have 
held  that  a  statute  cannot  make  it  unlawful  for  an 
employer  to  require  of  an  employee,  as  a  condition  of 
employing  him  or  retaining  him  hi  his  employment,  an 
agreement  that  he  will  not  during  the  time  of  the  employ- 
ment become  or  remain  a  member  of  a  labor  organization, 
or  to  discharge  or  to  threaten  to  discharge  him  by  reason 
of  such  membership.  Decisions  to  that  effect  have  been 
rendered  in  New  York,  Illinois,  Missouri,  Wisconsin, 
Minnesota,  Kansas,  and  by  the  federal  Supreme  Court 
with  reference  to  an  act  of  Congress,  and  a  later  decision 
of  Kansas  sustaining  such  a  law  was  reversed  by  the 
Supreme  Court  of  the  United  States  (Coppage  v.  Kansas, 
236  U.S.  i,  January,  1915).  The  argument  against  the 
validity  of  the  statute  seems  to  be  as  follows:  A  laborer 
has  the  right  to  quit  his  employment,  subject  to  a  liability 
to  damages  for  breach  of  contract,  since  the  specific  or 
penal  enforcement  of  personal  service  would  violate  the 
Thirteenth  Amendment,  resulting  in  a  condition  equiva- 
lent to  involuntary  servitude.  But  the  relation  being 
reciprocal,  the  employer  must  have  a  like  right  to  dis- 
charge the  employee,  subject  to  a  liability  for  breach  of 
contract.  The  right  to  discharge  being  absolute,  it  can- 
not logically  be  qualified  by  specifying  certain  causes  for 


244  STANDARDS  OF  AMERICAN  LEGISLATION 

which  it  may  not  be  exercised;  he  may  therefore  discharge 
because  the  employee  belongs  to  a  labor  union.  And  if 
he  may  discharge,  does  not  that  involve  the  minor  right 
to  inform  the  employee  in  advance  that  he  will  be  dis- 
charged if  he  joins  a  labor  organization  or  continues  in  it  ? 
Superficially  considered,  this  chain  of  reasoning  seems 
plausible;  and  the  first  part  of  it  seems  a  recognition  of 
the  principle  of  correlation.  More  closely  scrutinized, 
the  argument  shows  weakness.  I  have  contended  else- 
where,1 and  still  believe  it  to  be  true,  that  the  right  to 
discharge  implies  neither  the  right  to  make  threats  of 
discharge  nor  the  right  to  make  any  or  all  exactions  as  a 
condition  of  non-discharge,  and  the  dissenting  opinion  of 
the  Supreme  Court  in  the  Coppage  case  expresses  itself 
to  the  same  effect  (236  U.S.  32,  36).  The  reasoning  of 
the  present  decisions  would  lead  to  the  nullification  of  all 
the  statutes  which  forbid  the  threat  of  discharge  by  way 
of  influencing  the  exercise  of  political  rights2 — statutes 
which  do  not  appear  to  have  been  questioned,  and  which 
are  eminently  sound  in  principle.  It  is  also  impossible 
to  believe  that  the  last  word  has  been  spoken  upon  the 
constitutional  right  to  quit  service  and  to  discharge  an 
employee;  some  day  the  relation  of  involuntary  servitude 
and  breach  of  contract  will  have  to  be  reconsidered. 

Again,  however,  as  in  the  coal-weighing  legislation,  if 
the  decisions  are  unsatisfactory,  the  legislation  is  no  less 
so,  and  the  defect  of  the  statute  may  account  for  the 
decision. 

1  Police  Power,  sec.  326.  'Ibid.,  sec.  325. 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          245 

The  true  principle  of  correlation  requires,  not  that  a 
right  to  quit  service  arbitrarily  should  be  offset  by  an 
arbitrary  right  to  discharge,  but  that  the  employer  should 
not  be  deprived  of  a  legitimate  weapon  of  defense  with- 
out being  given  some  assurance  that  his  defenselessness 
will  not  be  abused.  Put  in  other  words,  if  some  particular 
union  is  actively  hostile  to  some  employer,  it  is  unjust  to 
require  him  to  retain  the  members  of  that  union  hi  his 
employ.  A  statute  that  deals  with  the  matter  at  all 
ought  to  weigh  carefully  the  possible  effects  of  altering 
common-law  rights  and  offset  privilege  by  obligation.  It 
affords  no  solution  of  the  problem  to  give  legitimate 
protection  to  the  employee  by  taking  the  means  of 
legitimate  protection  from  the  employer. 

It  is  quite  futile  to  argue,  as  is  the  present  fashion,  the 
question  of  abstract  power,  and  it  does  not  take  much 
gift  of  prophecy  to  see  that  a  bare  denial  of  legislative 
power  by  the  courts  can  under  our  institutions  prevail 
only  for  a  short  time.  What  is  needed  is  to  point  out  the 
defects  of  legislation  as  measured  by  sound  principles,  for 
these  must  ultimately  prevail  unless  we  are  to  despair  of 
our  system  of  government.  Liberty  does  not  furnish  an 
intelligible  principle  of  legislation,  because  all  police 
legislation  is  necessarily,  as  far  as  it  goes,  a  negation  of 
liberty;  and  reasonableness  means  nothing  without  a 
more  definite  content,  while  the  correlation  of  rights  and 
obligations  at  least  suggests  a  way  to  constructive  justice. 

Absolute  correlation  is,  of  course,  a  counsel  of  per- 
fection. It  may  be  impossible  for  the  present  to  work 


246  STANDARDS  OF  AMERICAN  LEGISLATION 

out  a  formula  which  measures  out  precisely  equal  protec- 
tion to  employer  and  employee  in  the  matter  of  organiza- 
tion; it  may  be  necessary  to  operate  with  such  general 
ideas  as  privilege,  interference,  abuse,  intimidation, 
coercion,  etc.,  and  leave  their  further  development  to 
courts  and  juries,  so  that,  as  in  the  development  of  the 
common  law,  the  principle  would  be  gradually  elaborated 
by  adjusting  rights  and  obligations  in  particular  cases 
and  allowing  these  to  operate  as  precedents. 

The  uncompromising  logic  of  correlation  may  also 
lead  to  demands  that  at  present  are  obviously  beyond 
realization.  Thus  it  may  be  pointed  out  that  it  is  incon- 
sistent to  impose  upon  public  utilities  the  obligation  to 
serve  the  public  without  giving  them  the  power  to  com- 
mand the  services  of  employees.  In  answer  it  can  only 
be  said  that  such  a  power  is  at  present  beyond  the  reach 
of  the  attainable,  and  that  therefore  it  is  necessary  to  be 
illogical.  The  anomalies  of  political,  economic,  and  social 
conditions  will  inevitably  now  and  then  counteract  the 
operation  of  principle.  The  claim  is  not  that  legislation 
shall  be  perfect,  but  that  it  shall  approximate  perfection 
so  far  as  actual  conditions  will  permit.  Only  to  this 
extent  is  the  principle  of  correlation  contended  for. 

It  is  easily  demonstrated  that  much  legislation  falls 
short  even  of  the  attainable  standard.  An  improvement 
of  legislative  methods  will  regularly  lead  to  a  greater 
approximation  to  the  standard.  It  is  interesting  to 
compare  recent  English  with  American  legislation  in  that 
respect.  Our  minimum-wage  acts  are  silent  as  to  the 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          247 

corresponding  duty  of  service,  whereas  the  English  Act 
of  1912  relating  to  coal  mines  provides  for  rules  with 
respect  to  the  regularity  and  the  efficiency  of  the  work 
to  be  performed. 

Our  statutes  making  railroad  companies  liable  for  fire 
caused  to  adjacent  property  by  sparks  from  locomotives 
are  much  older  than  that  of  England;  in  England  a 
statute  was  first  enacted  in  1905  (5  Ed.  VII,  ch.  n);  but 
this  statute  contains  a  provision  found  in  no  American 
act,  giving  the  railroad  company  the  right  to  have  its 
servants  go  on  the  land  for  the  purpose  of  clearing  it 
from  underbrush  or  other  worthless  inflammable  material, 
a  right  to  control  in  part  at  least  the  conditions  that  give 
rise  to  the  liability. 

The  principle  of  correlation  is  indeed  most  fruitful  in 
the  law  of  liability.  The  shortcomings  of  legislation  in 
that  respect  can  best  be  studied  in  the  history  of  the 
mechanics'  lien  acts,  the  constitutional  status  of  which 
has  become  uncertain  by  reason  of  the  failure  to  work 
out  adequately  the  complex  relations  between  owner  and 
subcontractor.  The  most  careful  elaboration  of  the 
principle,  on  the  other  hand,  is  found  in  the  workmen's 
compensation  acts  of  recent  years.  In  connection  with 
these  the  general  reflection  suggests  itself  that  statutory 
liability  is  likely  to  represent  a  higher  type  of  law  than 
common-law  liability,  for  the  reason  that  the  common  law 
is  less  capable,  if  capable  at  all,  of  producing  positive  and 
measured  duties.  The  requirement  of  notice  to  the  person 
sought  to  be  charged,  so  essential  to  his  protection  against 


248  STANDARDS  OF  AMERICAN  LEGISLATION 

fraudulent  claims,  is  thus  regularly  found  in  liability  acts 
(not,  however,  in  the  wrongful-death  acts  copied  from 
Lord  Campbell's  Act),  while  in  the  nature  of  things 
common-law  liability  is  not  qualified  in  this  way. 

Altogether  the  principle  of  correlation  means  the  inter- 
dependence of  right  and  obligation.  In  so  far  as  it  is 
recognized  it  compels  the  legislator  to  examine  a  relation, 
if  the  term  may  be  used,  from  the  debit  as  well  as  the 
credit  side,  and  it  works  against  the  assertion  of  absolute 
and  unqualified  right.  It  complicates  the  simplicity  of 
the  common  law,  but  for  that  very  reason  indicates  an 
advanced  stage  of  jurisprudence. 

THE  PRINCIPLE   OF   STANDARDIZATION 

If  correlation  means  more  carefully  measured  justice, 
standardization  serves  to  advance  the  other  main  objects 
of  law,  namely,  certainty,  objectivity,  stability,  and 
uniformity.  Common-law  rules  carry  their  justification 
in  the  reasoning  upon  which  they  are  based,  but  legislation 
generally  involves  a  choice  between  a  number  of  rules  of 
equal  or  of  equally  doubtful  equity,  and  thus  presents  the 
problem  of  avoiding  the  appearance  of  arbitrariness  in 
fixing  upon  some  particular  provision.  It  is  therefore 
desirable  that  conclusions  be  reached  as  far  as  possible 
upon  an  objective  and  intelligible  basis,  and  that  this 
basis  be  not  needlessly  varied  from  statute  to  statute. 
Standardization  thus  represents  a  definite,  if  compre- 
hensive and  far-reaching,  ideal  in  legislation,  and  while 
it  enters  into  every  other  principle,  it  does  so  as  a  distinct 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          249 

and  additional  attribute.  If  liability  needs  correlation, 
any  system  of  correlation  will  gain  by  being  standardized, 
and  so  with  regard  to  classification,  the  protection  of 
vested  rights,  and  so  forth. 

The  principle  of  standardization  has  four  main 
applications  or  phases  in  the  making  of  statute  law: 
conformity  to  undisputed  scientific  data  and  conclusions, 
the  working  out  of  juristic  principles,  the  observance  of 
an  intelligible  method  in  making  determinations,  and  the 
avoidance  of  excessive  or  purposeless  instability  of  policy. 

i.  Conformity  to  scientific  laws. — The  bulk  of  modern 
legislation  deals  with  social,  economic,  or  political  prob- 
lems. These  problems  are  not  amenable  to  the  same 
methods  of  treatment  as  the  problems  of  physical  sci- 
ence, and  few  of  the  conclusions  offered  in  the  name  of 
the  social  sciences  can  claim  finality  or  acceptance  as 
absolute  truths.  Those  who  insist  that  the  legislature  is 
bound  to  defer  to  experts  do  well  to  remember  that,  of 
the  great  social  measures  of  the  nineteenth  century,  the 
factory  acts  were  carried  against  the  protests  of  econo- 
mists, while  the  public-health  laws  were  largely  based  on 
theories  of  the  spread  of  disease  which  are  now  rejected. 
So  far  as  undisputed  conclusions  are  available,  they  ought 
to  be  accepted  as  a  basis  for  legislation,  but  even  this 
modest  demand  represents  an  ideal  rather  than  an 
actuality,  for  even  if  skepticism,  prejudice,  and  selfish 
interest  did  not  count  as  factors,  the  limitation  of  avail- 
able resources  must  often  stand  in  the  way  of  the  realiza- 
tion of  policies  conceded  to  rest  on  an  indisputable 


250  STANDARDS  OF  AMERICAN  LEGISLATION 

foundation.  It  is  sufficient  to  refer  to  laws  concerning 
taxation,  financial  administration,  and  charity  and  cor- 
rection, which  admittedly  at  best  approximate  the  recog- 
nized scientific  standards.  Where  legislation  involves  the 
operation  of  the  physical  sciences  (health,  safety),  there 
is  a  greater  readiness  to  submit  to  authority,  and  a  failure 
in  this  respect  will  usually  be  due  to  inadequate  means. 

These  are  commonplaces;  no  one  speaking  of  scientific 
legislation  could  possibly  ignore  standardization  in  this 
sense.  In  mapping  out  a  science  of  legislation,  however, 
it  would  hardly  do  to  claim  as  belonging  to  its  province 
all  the  social  any  more  than  all  the  physical  sciences  that 
have  to  be  considered  in  carrying  out  legislative  policies. 
It  is  true  that  legislation  in  a  sense  controls  and  fashions 
the  former,  while  it  merely  applies  the  latter,  and  the 
legislator  is  therefore  likely  to  feel  with  regard  to  the 
former  a  responsibility  which  easily  translates  itself  into 
a  sense  of  duty  to  form  independent  opinions,  while  in 
matters  of  sanitation  or  engineering  he  would  defer  to 
expert  authority. 

Nevertheless,  a  science  of  legislation  desirous  of 
establishing  a  status  of  its  own  would  treat  the  data  of 
the  social  sciences  as  lying  outside  of  its  own  sphere  and 
consider  that  its  task  begins  only  when  their  conclusions 
have  been  reached  and  formulated.  The  task  would 
then  be  the  technical  one  of  translating  a  policy  into  the 
terms  of  a  statute  and  judging  as  a  preliminary  matter 
whether  such  translation  is  practicable.  The  first  of  the 
four  phases  of  the  principle  of  standardization  would 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          251 

therefore  mean  chiefly  a  draft  upon  other  sciences,  and, 
as  part  of  the  science  of  legislation,  would  express  itself 
only  in  methods  of  organization  and  operation  calculated 
to  make  sure  that  legislation  is  not  enacted  in  ignorance 
of  relevant  data  that  are  capable  of  being  authorita- 
tively established.  To  illustrate:  the  valuable  work 
which  is  being  done  at  present  to  find  rational  and 
"scientific"  bases  for  rate-making,  for  tax  valuations,  for 
public-service  requirements,  and  generally  for  terms  of 
franchise  grants  is  not  the  work  of  legal  experts,  but  of 
economists,  accountants,  and  engineers;  but  the  principle 
of  standardization  demands  at  the  very  least  the  adoption 
of  legislative  methods  which  give  an  opportunity  for 
this  kind  of  work  and  information  and  bring  its  results 
to  the  notice  of  the  legislators. 

2.  Standardization  of  juristic  data. — The  division  of 
sciences  is  a  practical  matter,  and  it  is  for  practical  pur- 
poses that  we  should  refuse  to  encumber  the  science  of 
legislation  with  the  tasks  of  social,  economic,  or  political 
science.  The  problems  of  jurisprudence  are,  however,  so 
closely  related  to  the  technical  problem  of  legislation  that, 
in  so  far  as  legal  science  has  established  or  is  capable  of 
establishing  settled  conclusions,  they  are  properly  treated 
as  part  of  the  science  of  legislation  and  should  contribute 
to  its  standardization.  Unfortunately,  hardly  any  sys- 
tematic thought  has  been  given  to  problems  of  juris- 
prudence in  their  constructive  aspect;  the  law  of 
evidence  furnishes  perhaps  the  only  conspicuous  excep- 
tion. Littleton's  Tenures  has  been  extravagantly  praised 


252  STANDARDS  OF  AMERICAN  LEGISLATION 

as  the  most  perfect  work  written  in  any  science;  but  in 
treating  the  law  as  purely  static  it  has  set  a  model  to  all 
subsequent  legal  literature.  Where  Blackstone  wanders 
off  into  critical  estimate  he  becomes  absurd,  as  where  he 
speaks  of  the  woman  laboring  under  the  disabilities  of 
coverture  as  a  favorite  of  the  laws  of  England.  Professor 
Gray's  Rule  against  Perpetuities  has  no  superior,  if  any 
equal,  among  American  legal  writings,  but  his  treatment 
of  the  problem  of  how  to  deal  constructively  with  settled 
property  is  negligible  and,  so  far  as  it  goes,  superficial; 
his  condemnation  of  spendthrift  trusts  in  his  essay  on 
Restraints  on  Alienation  manifests  a  fine  virility  of  legal 
philosophy,  but  is  hardly  an  objective  estimate  of  a 
difficult  and  delicate  legislative  problem.  It  is  only  in 
recent  years  that  technical  questions  of  land  legislation 
have  been  discussed  critically  and  constructively  in 
English  legal  reviews  and  parliamentary  papers  or  reports; 
the  reforms  of  the  nineteenth  century  passed  almost 
without  literary  comment.  In  America  the  critical  treat- 
ment of  technical  legislative  problems  is  even  more 
meager  and  unsystematic. 

It  must  be  conceded  that  some  of  the  most  funda- 
mental problems  of  jurisprudence  seem  as  yet  incapable 
of  any  other  than  a  purely  empirical  or  conventional 
solution.  Which  is  preferable  in  legal  acts,  form  or 
informality  ?  What  should  be  the  extent  of  the  protec- 
tion of  bona  fide  purchasers?  What  limitations  and 
restraints  upon  the  freedom  of  property  should  be 
conceded  ?  Should  a  consideration  be  required  to  make 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          253 

a  promise  binding?  Should  the  right  of  corporate 
organization  be  conceded  for  all  legal  or  only  for  specified 
purposes?  No  answer  can  be  given  to  any  of  these 
questions  that  is  "  scientifically "  or  even  empirically 
indisputable;  in  the  construction  of  civil  codes  they  are 
treated  as  questions  of  policy,  determined  by  a  mutual 
balancing  of  conflicting  considerations. 

On  the  other  hand,  practically  undisputed  conclusions 
have  been  reached  with  regard  to  other  subjects,  perhaps 
mainly  on  the  adjective  side  of  the  law  (penalties,  methods 
of  enforcement,  etc.),  wherever  any  serious  thought  has 
been  given ,  to  these  subjects.  Thus  informers'  shares 
and  multiple  damages  survive  only  where  legislation  is  hi 
amateur  hands.  The  range  of  these  settled  conclusions 
will  be  greatly  extended  when  once  systematic  study 
shall  be  devoted  to  the  technique  of  statute  law.  In 
many  cases  it  can  be  demonstrated  that  the  preference 
of  one  formulation  to  another  will  without  alteration  of 
substance  make  a  provision  practically  more  available 
for  its  intended  purposes.  The  acceptance  of  the  better 
form  should  then  be  a  matter  of  course. 

In  discussing  the  terms  of  a  statute  there  can  ordi- 
narily be  no  difficulty  in  distinguishing  juristic  consid- 
erations from  other  considerations  of  expediency,  which 
belong  to  political  science  rather  than  to  jurisprudence. 
Suppose  some  legislative  policy  or  object  is  accepted  as 
intrinsically  desirable,  it  is  still  necessary  to  take  into 
account  the  operation  of  adverse  factors:  the  likelihood 
of  public  resistance  due  to  widespread  hostile  sentiment 


254  STANDARDS  OF  AMERICAN  LEGISLATION 

(class,  sectional,  religious,  national  sentiment),  the  like- 
lihood of  private  resistance  and  consequent  difficulties  of 
enforcement  (inquisitorial  methods  of  tax  assessment), 
the  likelihood  of  administrative  resistance,  where  there  is 
a  disharmony  between  legislative  and  administrative 
standards.  It  is  also  necessary  to  have  a  proper  appre- 
ciation of  the  unintended  reactions  of  the  proposed 
legislation  resulting  either  from  its  normal  operation 
(housing  legislation  and  increased  rents),  or  from  the 
conditions  of  enforcement  (white-slave  legislation  and 
blackmailing;  declaring  common-law  marriages  void  and 
thereby  rendering  issue  illegitimate),  or  from  attempts  at 
lawful  evasion  (marriage  or  divorce  outside  of  the  state; 
factory  laws  increasing  tenement  labor),  or  from  illegal 
evasion  (prohibition  leading  to  increased  consumption  of 
the  more  easily  concealed  but  also  more  harmful  kind  of 
liquor;  closing  of  houses  of  prostitution  and  scattering 
of  vice;  more  stringent  marriage  laws  and  increase  of 
illegitimate  births). 

Under  careful  methods  of  legislation  these  considera- 
tions are  not  likely  to  be  overlooked,  but  it  is  not  easy  to 
standardize  the  weight  which  should  be  given  to  them 
respectively,  and  in  any  event  they  do  not  (except  as  they 
bear  upon  technical  conditions  of  enforcement)  fall  within 
the  province  of  the  jurist.  There  is,  however,  one  con- 
sideration which,  while  not  technically  juristic,  has  such 
an  intimate  relation  to  the  entire  nature  and  purpose  of 
law  that  in  discussing  the  principle  of  standardization  it 
cannot  be  ignored:  that  is,  the  observance  of  a  certain 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          255 

order  of  transition  in  advancing  to  new  policies  or 
standards. 

American  legislation  has  sometimes  violated  this 
principle,  but  the  very  violations  have  served  to  illustrate 
its  correctness.  In  the  fifties  of  the  last  century  the 
country  was  not  prepared  to  accept  entire  prohibition  as 
a  method  of  dealing  with  the  evils  of  intoxicating  liquor; 
its  establishment  by  statute  necessarily  produced  law- 
lessness. In  1893  a  general  eight-hour  law  for  women 
(had  it  not  been  declared  unconstitutional)  would  have 
been  as  unenforceable  as  an  eight-hour  law  for  all  persons 
employed  in  any  kind  of  service  would  be  today.  The 
status  of  unmatured  and  precocious  standards  hi  our 
legislation  has  been  explained  before,  and  it  has  been 
pointed  out  that  it  is,  generally  speaking,  the  function  of 
legislation  to  remedy  grievances  and  correct  abuses,  and 
not  to  reconstruct  society  de  now  or  to  force  standards  for 
which  the  community  is  not  prepared.  In  practice  the 
observance  of  this  principle  is  ordinarily  a  matter  of 
course,  but  it  should  be  emphasized  that  it  is  of  the  very 
essence  of  the  idea  of  law  that  progress  should  be  gradual 
and  orderly,  and  that  violent  and  extreme  change,  even 
if  in  the  right  direction,  must  produce  disturbance  and  a 
sense  of  insecurity. 

3.  The  observance  of  a  definite  method  in  reaching 
determinations. — In  matters  not  susceptible  of  scientific 
demonstration,  when  either  of  two  different  solutions  of  a 
problem  can  equally  claim  to  be  reasonable,  arbitrariness 
hi  reaching  conclusions  can  be  best  avoided  by  adherence 


256  STANDARDS  OF  AMERICAN  LEGISLATION 

to  intelligible  and  settled  methods  which  insure  a  reason- 
ably constant  relation  between  determinations  on  cognate 
matters,  each  of  which  taken  by  itself  must  be  the  result 
of  compromise  or  of  free  choice.  This  satisfies  at  least 
the  strong  and  universal  demand  for  order  and  proportion; 
and  the  danger  of  overlooking  this  requirement  would 
hardly  arise  were  it  not  for  the  fact  that  the  legislature 
deals  with  related  problems  by  distinct  and  disconnected 
measures. 

This  latter  phase  of  standardization  is  most  conspicu- 
ous when  legislation  deals  with  figures,  and  it  has  therefore 
no  place  in  the  common  law,  which  has  practically  no 
measured  quantities.  It  applies  chiefly  to  rates  and 
charges,  allowances  and  expenditures,  penalties  and  time 
provisions.  It  would  be  almost  impossible  to  conceive 
of  a  progressive  tax  rate  otherwise  than  as  following  an 
orderly  line  of  progression.1  Exact  proportion,  it  is  true, 
may  yield  to  simplicity  and  uniformity,  as  when  a  flat 
rate  is  prescribed  for  street-car  fares  instead  of  one  vary- 
ing with  distance;  but  otherwise  a  departure  from  an 
orderly  relation  would  be  regarded  as  prima  facie  arbi- 
trary and  unjust.  That  is  the  trouble  with  the  greater 
charge  for  the  shorter  haul,  as  long  as  the  economic  law 
of  competitive  rates  is  not  fully  understood,  and  if  the 
practice  was  strongly  resented  when  coming  from  private 
owners  of  railroads,  it  is  almost  unthinkable  that  it  should 
be  imposed  by  legislative  regulation  except  after  first 

'A  mathematical  formula  will  be  found  in  National  Tax  Association 
Bulletin  No.  i,  p.  13,  taken  from  the  report  of  a  commission  on  taxation  pre- 
sented to  the  legislature  of  Massachusetts  in  1916. 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          257 

demonstrating  scientifically  its  economic  justification. 
It  is  one  of  the  intolerable  features  of  the  assessment  of 
real  property  for  purposes  of  taxation  that  it  has  so 
generally  been  absolutely  unstandardized.  The  new 
devices  for  valuation  proposed  hi  recent  years  have 
all  this  in  common,  that  they  establish  a  definite 
relation  between  location  and  value;  in  the  last  analy- 
sis value  may  escape  scientific  definition,  but  these 
methods  at  least  secure  an  orderly  relativity  of  valua- 
tions.1 

This  kind  of  standardization  comes  naturally  where  a 
legislative  plan  is  conceived  and  carried  out  as  a  unit,  but 
will  necessarily  be  deficient  where  measures  are  discon- 
nected and  proceed  from  many  independent  sources. 
American  legislation,  initiated  by  shifting  bodies  and 
often  framed  by  unascertained  and  irresponsible  persons 
is  therefore  inferior  in  this  respect  to  European  legislation, 
which  is  practically  controlled  by  the  executive  govern- 
ment. Taking  the  matter  of  official  salaries,  a  cursory 
examination  of  state  statutes  shows  figures  that  have 
hardly  any  relation  to  each  other;  the  Report  of  the 
Economy  and  Efficiency  Committee  of  Illinois  particularly 
points  out  the  lack  of  system  in  that  state.2  In  Prussia 
this  matter  is  standardized  to  the  extent  of  the  differen- 
tiation of  one  hundred  and  eighty  salary  classes.  A 
similar  standardization  arises  in  America  as  soon  as  the 
adjustment  of  salaries  is  left  to  be  handled  in  accordance 

1  See  discussion  of  the  Somers  system  in  Proceedings  of  National  Tax 
Association,  1913,  pp.  234-85. 

2  Report,  p.  20. 


258  STANDARDS  OF  AMERICAN  LEGISLATION 

with  civil  service  rules.1  In  the  federal  government 
likewise,  with  its  high  administrative  centralization,  the 
standardization  of  salaries  is  better  than  in  the  states. 
But  the  lack  of  co-ordination  of  appropriations  in  general 
even  in  the  federal  system  is  shown  by  President  Taft's 
Commission  on  Economy  and  Efficiency,  and  the  strong 
movement  for  the  European  form  of  budget  bears  testi- 
mony to  the  need  for  reform.  It  is  hardly  conceivable  that 
the  appropriations  for  river  and  harbor  improvements  or 
for  public  buildings  should  not  bear  at  least  some  degree 
of  relation  to  population,  wealth,  or  commerce,  but  no  con- 
sistent or  systematic  plan  has  ever  been  presented  to  the 
public,  and  failure  to  make  a  system  generally  intelligible 
is  almost  as  bad  in  such  a  matter  as  having  no  system 
at  all. 

It  is  not  possible  to  measure  penalties  upon  a  strictly 
scientific  basis,  but  if  there  is  a  science  of  penology  it 
must  be  one  of  its  cardinal  principles  that  penalties  should 
be  proportioned  to  the  offense.  In  fact,  the  principle  is 
expressed  in  some  American  constitutions;  and  this  again 
means  that  penalties  should  be  proportioned  to  one 
another.  In  most  jurisdictions  the  criminal  law  is 
codified;  the  codification  covers  all  the  common  felonies 
which  are  consequently  considered  in  relation  to  each 
other,  with  the  effect  that  there  is  a  tolerable  propor- 
tionateness  of  penalties.  The  differentiation  of  each 
generic  felony  into  its  possible  subspecies  is,  however, 

1  See  "  Standardization  of  Public  Employments,"  Municipal  Research 
No.  67,  November,  1915. 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          259 

only  very  imperfectly  carried  out  in  American  codes,  as 
compared,  e.g.,  with  the  German  Penal  Code.  The 
American  system  is  to  allow  a  liberal  margin  between 
minimum  and  maximum  penalty,  with  the  result  that 
individual  estimate  is  substituted  for  abstract  differ- 
entiation. This  may  be  intended  to  make  for  better 
justice,  but  it  is  likely  to  make  for  greater  arbitrariness 
and  chance.  The  indeterminate  system  tends  toward 
uniform  leniency  and  thus  avoids  at  least  undue 
hardship. 

The  great  mass  of  misdeameanors  is  created  by 
separate  statutes,  and  the  benefit  of  unity  of  plan  which 
belongs  to  codification  is  lacking.  We  should  therefore 
expect  a  lower  degree  of  standardization  of  penalties; 
but,  on  the  other  hand,  the  range  in  the  possible  terms 
of  imprisonment  being  small,  the  problem  practically 
reduces  itself  to  one  of  pecuniary  fines,  in  which  a  large 
delegation  of  discretion  is  less  serious.  The  serious 
grievance  with  regard  to  pecuniary  penalties  is  not  their 
disproportionateness  as  between  different  offenses,  but 
objectionable  bases  of  admeasurement  (cumulation  of 
offenses,  multiple  damages,  etc.).  It  would,  however, 
be  an  advance  of  justice  if  violations  of  statutory  require- 
ments or  prohibitions  (mala  prohibita)  were  simply  de- 
clared misdeameanors  punishable  by  fine  and  imprison- 
ment not  exceeding  a  moderate  term,  and  then  a  system 
were  evolved  of  measuring  the  gravity  of  the  offense  by 
certain  criteria  relating  to  the  offender,  the  value  of  the 
interest  affected,  and  the  circumstances  of  commission, 


260  STANDARDS  OF  AMERICAN  LEGISLATION 

and  penalties  were  required  to  be  scaled  accordingly. 
But  we  are  far  from  such  a  system. 

4.  Stability  of  policy. — Standardization  should  mean 
finally  the  avoidance  of  instability  of  policy.  Where 
policies  are  really  contentious,  an  abstractly  undesirable 
degree  of  variability  is  perhaps  an  inevitable  result  of 
democratic  institutions.  Moreover,  the  American  prac- 
tice of  introducing  new  legislative  ideas  in  the  form 
of  tentative  statutes  which  will  be  amended  repeatedly 
until  satisfaction  is  obtained  leads  to  an  appearance  of 
unsteadiness  and  lack  of  purpose  when  in  reality  there  is 
merely  experimentation.  But  apart  from  this,  European 
standards  cannot  be  applied  to  American  legislation  so 
long  as  we  deliberately  prefer  an  unconcentrated  system 
of  legislative  initiative  to  a  practical  government  monop- 
oly in  that  respect. 

There  is  no  particular  reason  why  procedural  regulation 
should  be  more  unsettled  in  America  than  it  is  in  Europe. 
Compare,  however,  the  codes  of  New  York  (1877,  1880) 
and  of  the  German  Empire  (1879),  which  date  from  about 
the  same  time.  The  German  Code  of  Procedure  has 
been  changed  only  twice,  first  after  the  enactment  of  the 
Civil  Code,  which  necessitated  extensive  alterations  to 
conform  procedure  to  the  new  substantive  law,  and  again 
in  1909,  when  about  one  hundred  sections  were  amended, 
mainly  in  relation  to  the  courts  of  inferior  jurisdiction. 
In  New  York  amendments  are  of  annual  occurrence,  and 
in  some  years  number  upward  of  fifty;  in  1909,  when  the 
Board  of  Statutory  Consolidation  recommended  about 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          261 

one  hundred  changes  which  were  adopted,  there  were  in 
addition  twenty-three  separate  amendments.  The  num- 
ber of  amendments  in  the  last  ten  years,  not  counting 
those  recommended  by  the  Consolidation  Commissioners, 
is  about  three  hundred  and  fifty.  The  contrast  between 
the  two  codes  needs  no  comment. 

Equally  unfavorable  is  a  comparison  of  the  code  legis- 
lation of  New  York  with  the  practice  legislation,  e.g.,  of 
Illinois;  indeed,  the  differences  in  degree  of  permanence 
of  legislation  in  general  between  the  American  states  are 
sufficiently  striking  without  pointing  to  foreign  examples. 
The  legislation  of  the  state  of  New  York  exceeds  in  bulk 
by  far  that  of  any  other  state,  perhaps  that  of  any  other 
known  jurisdiction,  and  a  reference  to  such  a  state  as 
Illinois  shows  that  the  enormous  disproportion  cannot  be 
due  to  greater  magnitude  or  diversity  of  interests,  but  is 
chiefly  a  matter  of  loose  practice.  It  is  self-evident  that 
with  such  a  mass  of  legislation  as  we  find  in  New  York 
the  degree  of  standardization  must  be  low;  for  mass  in 
legislation  means  variety,  while  standardization  means 
uniformity.  Permanence  and  uniformity  are  in  them- 
selves elements  of  strength  and  authority;  and  with  all 
its  defects  the  common  law  has  never  failed  to  com- 
mand that  respect  which  belongs  to  settled  and  con- 
sistent rule.  Conversely,  lack  of  standardization  must 
weaken  the  authority  of  statutes.  As  a  principle  of 
legislation  the  consistent  observance  of  standards  in 
the  exercise  of  discretion  is  therefore  of  the  highest 
political  value. 


262  STANDARDS  OF  AMERICAN  LEGISLATION 

Assuming,  however,  that  instability  of  controverted 
policies  proves  at  least  that  there  is  no  stagnation,  and 
that  there  is  a  ready  response  to  changing  popular  desire, 
that  mitigating  circumstance  cannot  be  pleaded  to  excuse 
the  lack  of  established  policy  in  the  technical  detail  of 
statute.  However  controversial  the  main  object  of  a 
bill,  there  are  always  matters  incidental  to  it,  upon  which 
there  are  no  settled  convictions,  and  about  which  the  only 
legislative  purpose  is  to  do  the  right  thing.  Occasion- 
ally there  may  be  a  desire  to  make  enforcement  clauses 
particularly  strong  or  even  drastic,  but  since  experience 
has  frequently  demonstrated  the  futility  of  excess  in  this 
direction,  this  desire  is  likely  to  yield  to  more  conserva- 
tive counsels  on  behalf  of  the  greater  efficiency  of  standard 
methods  of  enforcement. 

Barring  exceptional  cases,  it  is  not  impossible  to  obtain 
agreement  upon  what  is  regarded  as  the  technical  detail 
of  a  statute,  and  there  is  every  reason  why  subsidiary 
clauses  should  be  standardized.  The  result  would  be 
both  greater  economy  of  legislative  labor  and  more  equal 
justice  in  administration. 

The  practice  of  English  legislation  recognizes  the  dis- 
tinction between  controversial  policy  and  technical  detail 
in  an  interesting  manner.  The  government  assumes 
responsibility  for  the  policy  and  expects  to  carry  it 
through  Parliament.  This  policy  is  discussed  on  second 
reading  and  is  then  affirmed  or  rejected  by  a  vote  of  the 
House.  At  this  stage  it  is  irregular  to  discuss  detail.  In 
the  committee  stage,  however,  questions  of  machinery 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          263 

and  detail  are  properly  brought  up,  and  the  members 
may  propose  amendments  which,  from  whatever  side 
they  come,  the  government  will  consider  and,  if  they 
make  for  better  justice,  is  likely  to  adopt.  Such,  at  least, 
is  the  theory.  The  long  tradition  of  the  House  of  Com- 
mons has  evolved  a  method  whereby  the  judgment  of 
members  of  all  parties  may  be  utilized  in  the  technical 
perfection  of  a  measure,  while  the  control  of  policies  is 
reserved  to  the  majority  or  to  the  government  which 
speaks  for  it. 

Equally  important  is  the  English  practice  of  clauses' 
consolidation.  This  serves  to  standardize  private-bill 
legislation.  Experience  shows  that  in  authorizing  rail- 
roads, waterworks,  or  other  public  improvements  certain 
provisions  of  constant  recurrence  are  the  most  efficient; 
these  are  finally  codified  and  subsequently  incorporated 
by  reference  into  special  bills.  A  series  of  notable 
clauses'  consolidation  acts  were  enacted  in  the  early  part 
of  the  reign  of  Victoria.  These  clauses  embody  the  result 
of  years  of  experimentation  and  of  the  fullest  discussion 
and  consideration.  Somewhat  different,  but  serving  the 
same  general  purpose,  is  the  more  recent  English  practice 
of  incorporating  into  a  statute  by  reference  a  clause  of  an 
earlier  statute  relating  to  a  subsidiary  matter  common  to 
both,  where  the  clause  in  the  earlier  statute  has  proved 
particularly  serviceable  or  effective.  So  hi  the  matter  of 
the  procedure  for  adopting  administrative  regulations. 

It  should  be  observed  that  even  without  reference  to 
clauses'  consolidation  acts  special  or,  as  it  is  usually 


264  STANDARDS  OF  AMERICAN  LEGISLATION 

called,  private-bill  legislation  is  remarkably  standardized 
in  England,  so  much  so  that  the  introduction  of  a  new 
principle  is  rejected  as  irregular  except  under  quite 
special  safeguards.  A  unique  private-bill  procedure 
almost  automatically  insures  the  observance  of  the 
accepted  standards.  In  America  special  legislation 
flourished  for  a  long  time,  and  still  exists  in  a  number 
of  states;  but  it  conformed  to  no  ascertainable  principle, 
and  in  course  of  time  became  discredited  to  such  an 
extent  that  in  the  majority  of  states  it  has  been  almost 
entirely  suppressed  by  constitutional  restrictions. 

If  French  and  German  statutes  are  generally  much 
briefer  than  American  acts  on  similar  subjects,  the  reason 
is  that  a  comprehensive  administrative  machinery  is  pro- 
vided once  for  all  and  is  as  a  rule  available  for  new 
legislation.  A  clause  that  the  act  shall  be  carried  out  by 
the  Minister  of  the  Interior,  or  of  Commerce,  or  that  the 
higher  administrative  authorities  shall  be  competent,  is 
all  that  is  needed.  A  carefully  elaborated  administrative 
code  (in  Prussia  particularly  the  Act  of  1883)  furnishes 
the  detail  which  we  place  anew  in  each  separate  act. 
The  result  in  Germany  and  France  is  greater  uniformity, 
greater  economy,  and  a  more  carefully  thought-out  type 
of  administrative  provision. 

In  America  the  federal  system  is  in  this  respect  closer 
to  European  arrangements  than  that  prevailing  in  the 
states.  The  executive  departments,  and  more  recently 
the  great  commissions,  are  capable  of  taking  care  of  at 
least  some  part  of  the  new  legislation.  Even  so  complex 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          265 

and  poorly  drawn  an  act  as  the  Income  Tax  Law  of  1914 
was  somewhat  simplified  by  utilizing  the  existing  admin- 
istrative powers  of  the  internal  revenue  commissioner,  at 
least  so  far  as  these  powers  were  not  sought  to  be  amended. 
The  customs  tariff  has  been  the  game  of  parties  and  has 
undergone  frequent  changes;  in  the  twenty- three  years 
beginning  hi  1890  there  have  been  five  tariffs.  But  the 
Customs  Administration  Act  of  1890  has  been  kept  in 
force  by  all  these  tariffs  except  for  a  number  of  changes 
recommended  by  the  administrative  officials,  and  during 
the  entire  changeful  history  of  tariff  legislation  its  admin- 
istrative law  has  been  relatively  permanent.  In  fact,  in 
the  beginning  it  was  suggested  that  the  administration 
might  be  left  to  the  states,  and  for  a  long  time  the  remedy 
for  excess  duties  paid  was  state  common  law  and  not 
federal  law.  All  this  goes  to  show  how  separable  sub- 
sidiary clauses  are  from  the  substance  of  a  policy. 

In  the  states  it  is  customary  for  each  important 
statute  to  provide  its  own  administrative  detail,  since 
there  is  no  comprehensive  state  administrative  organiza- 
tion with  anything  like  general  or  residuary  powers. 
There  is  a  sharp  contrast  in  this  respect  to  the  machinery 
of  judicial  enforcement.  The  judiciary  has  that  unity 
and  comprehensiveness  which  the  administration  lacks; 
it  is  therefore  possible  to  grant  rights  without  providing 
the  detail  of  remedial  procedure  which  is  standardized 
by  common  law  and  equity  or  by  code  provisions.  So  the 
exercise  of  powers  of  condemnation  is  generally  regulated 
once  for  all  by  eminent-domain  statutes.  But  general 


266  STANDARDS  OF  AMERICAN  LEGISLATION 

administrative  statutes  are  rare.  New  York  has  a  few 
such  acts  of  general  application,  as,  e.g.,  the  Public 
Officers'  Law.  Civil-service  acts  may  likewise  be  classed 
in  this  category.  However,  the  only  real  parallel  in 
American  states  to  the  European  practice  is  to  be  found 
in  municipal  ordinances;  these  are  generally  confined  to 
substantive  provisions  exclusively,  the  administrative 
machinery  being  provided  by  state  statute.  The  munici- 
pality has  sometimes  a  limited  power  to  create  offices,  but 
practically  never  a  power  to  create  or  regulate  adminis- 
trative processes.  This  shows  the  possibility  of  segregat- 
ing the  subsidiary  clauses  from  the  main  provision.  The 
practice  might  well  be  extended  to  such  matters  as  the 
grant  and  revocation  of  licenses,  the  making  of  regulations, 
the  furnishing  of  bonds,  the  giving  of  notices,  the  issue  of 
certificates,  the  exercise  of  examining  powers,  the  organi- 
zation and  mode  of  action  of  boards,  etc.  Such  standing 
clauses  would  not  be  absolutely  inflexible,  but  could  of 
course  be  varied  in  any  particular  statute  if  deemed 
necessary.  It  should  also  be  observed  that  the  statutory 
interpretation  or  construction  acts  which  exist  in  many 
states  fulfil  a  precisely  analogous  function. 

The  great  advantage  of  separately  codifying  subsidiary 
administrative  provisions  is  that  in  that  manner  alone 
will  they  ever  receive  adequate  consideration.  As  part  of 
another  statute  they  are  ordinarily  left  to  the  draftsman 
and,  compared  to  the  main  substantive  parts  of  a  bill, 
attract  little  attention.  At  the  worst  they  lend  them- 
selves admirably  to  the  perpetration  of  "jokers";  at  the 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          267 

best  they  follow  without  much  thought  previous  models. 
Occasionally  the  advocates  of  a  policy,  in  their  desire  to 
overcome  resistance  to  its  enforcement,  make  the  admin- 
istrative clauses  as  drastic  as  they  believe  the  constitution 
will  permit.  In  a  number  of  states  the  violation  of  anti- 
trust laws  was  thus  declared  a  felony,  but  it  must  be 
doubted  whether  in  a  single  case  the  corresponding  penalty 
was  inflicted. 

When  Senator  Sherman  first  introduced  the  bill  which 
later  on  resulted  in  the  anti-trust  act  known  by  his  name, 
it  provided  for  imprisonment  in  the  penitentiary.  How 
much  thought  he  had  given  to  the  matter  appears  from 
his  statement  a  few  months  later  that  he  was  clearly  of 
the  opinion  that  it  was  not  wise  to  include  provisions  for 
penalties  in  the  bill  at  all.  Senator  Reagan,  of  Texas, 
however,  again  recommended  penitentiary  sentences. 
The  provision  for  civil  proceedings  by  the  government, 
which  saved  the  act  from  utter  failure,  was  not  contained 
in  the  original  bill,  the  equitable  jurisdiction  to  enforce 
the  act  being  apparently  suggested  by  the  decision  of  the 
Supreme  Court  sustaining  the  like  jurisdiction  under  the 
Iowa  liquor  law,  a  decision  which  happened  to  be  rendered 
while  the  bill  was  before  the  Finance  Committee  of  the 
Senate.  The  provision  for  triple  damages  seems  to  have 
been  adopted  without  any  discussion;  it  subsequently 
received  its  principal  application  in  the  Danbury  Hatters' 
case,  i.e.,  to  the  detriment  of  those  labor  interests  which 
Congress  in  1914  sought  to  exempt  altogether  from  the 
operation  of  the  act.  Equally  little  thought  was  probably 


268  STANDARDS  OF  AMERICAN  LEGISLATION 

given  to  the  grotesque  clause  of  forfeiture  relating  to  prop- 
erty in  course  of  transportation  under  any  combination, 
which  the  government  has  never  sought  to  enforce.  It 
is  impossible  to  imagine  that  a  carefully  considered  ad- 
ministrative code  would  sanction  a  similarly  loose  system 
of  enforcement  provisions. 

The  trend  of  modern  legislative  opinion  is  against  the 
practice  of  allowing  private  parties  not  injured  by  a 
violation  of  a  law  to  recover  penalties  in  whole  or  in  part 
for  their  own  benefit  (informers'  shares,  qui  tarn  actions). 
The  practice  is  unworthy  and  demoralizing.  It  has 
practically  disappeared  from  England,  was  abrogated  in 
Prussia  in  1868  and  in  the  state  of  New  Hampshire  in 
1899.  It  used  to  be  common  in  the  federal  revenue 
legislation,  but  was  abolished  in  the  internal  revenue  in 
1872  and  in  the  customs  revenue  in  1874.  These  acts 
must  be  taken  as  the  expression  of  a  deliberate  policy. 
Yet  informers'  shares  appear  again  in  the  Immigration 
Act  of  1907,  and  they  are  not  uncommon  in  state  statutes. 
It  is  safe  to  say  that  they  do  not  represent  matured  and 
well-informed  legislative  opinion,  and  if  the  merits  of  the 
practice  could  be  considered  abstractly,  apart  from  the 
prejudices  engendered  by  particular  measures,  it  would 
not  be  difficult  to  make  a  case  for  its  entire  suppression. 

There  ought  to  be  a  consistent  policy  applied  to  the 
system  of  penalties.  In  connection  with  rate  legislation 
we  find  it  urged  at  one  time  that  the  power  to  inflict 
prison  sentences  is  necessary  to  make  the  law  obeyed,  at 
another  time  that  the  threat  of  imprisonment  is  futile 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          269 

and  should  be  abandoned.  The  history  of  liquor  legis- 
lation illustrates  the  failure  of  drastic  penalties  to  make  a 
law  effective.  In  1867  Maine  added  imprisonment  to 
fine  as  a  punishment  for  the  illegal  sale  of  liquor,  but  in 
the  following  year  imprisonment  was  made  discretionary. 
The  experience  was  repeated  in  1891  when  the  illegal 
transportation  of  liquor  was  sought  to  be  checked  by 
adding  imprisonment  to  fine,  whereupon,  we  are  informed 
prosecution  virtually  ceased,  and  again  in  1892  imprison- 
ment was  made  discretionary.1 

Conceding  that  experiences  like  these  are  not  abso- 
lutely conclusive,  the  constant  change  is  in  itself  clearly 
undesirable  and  unfavorable  to  vigor  of  enforcement. 
If  policies  regarding  subsidiary  clauses  are  determined 
anew  for  each  measure  as  a  mere  matter  of  habit  or  as  a 
consequence  of  the  absence  of  a  general  rule,  it  means  for 
the  legislature  the  waste  and  wear  of  responsibility  for 
new  decisions,  for  the  administration  the  inefficiency 
which  results  from  lack  of  consistent  purpose,  and  for 
the  individual  lack  of  uniformity  and  therefore  something 
that  approaches  the  deprivation  of  the  equal  protection 
of  the  land. 

It  is  curious  to  observe  that  when  we  compare  a 
particular  statute  with  its  enforcement,  the  administrative 
standard  is  more  conservative  than  the  legislative 
standard,  while,  on  the  other  hand,  the  legislative  stand- 
ard is  more  conservative  when  it  is  abstract  than  when  it 
is  specific.  This  shows  that  considerations  in  favor  of 

1  Keren  and  Wines,  Legislative  Aspects  of  the  Liquor  Problem,  p.  55. 


270  STANDARDS  OF  AMERICAN  LEGISLATION 

the  individual  as  against  the  government  will  have  the 
slightest  chance  when  a  particular  policy  is  under  discus- 
sion and  the  checking  influence  of  its  application  to 
individual  cases  is  not  operative.  Where  individual  right 
is  weighed  against  policy  on  general  principles,  a  fairer 
and  more  even  balance  will  be  struck.  For  it  will  then 
appear,  just  as  it  will  appear  when  sentence  is  to  be  pro- 
nounced in  a  particular  case,  that  the  carrying  out  of  a 
controverted  policy  is  not  the  last  and  only  consideration 
in  a  free  state,  but  that  excessive  powers  and  exorbitant 
penalties  are  not  only  unwise,  but  unjust,  and  may 
violate  a  higher  policy  than  the  one  that  may  be  rep- 
resented in  a  particular  measure.  That  is  why  guar- 
anties of  individual  right  are  placed  in  constitutions. 
The  separate  codification  of  administrative  clauses  will 
have  a  similar  purpose  and  effect:  it  will  constitute  a 
statutory  bill  of  rights. 

CONSTITUTIONAL  PRINCIPLES 

The  principles  so  far  discussed  are  not  recognized  by 
our  constitutions,  except  that  legislation  grossly  violating 
them  may,  in  extreme  cases,  be  held  to  fall  short  of  due 
process  of  law.  On  the  other  hand,  our  constitutions  do 
recognize  two  other  fundamental  principles  of  legislation : 
the  protection  of  vested  rights  and  equality.  The  con- 
stitutional protection  of  vested  rights  has  not  been 
adjusted  in  a  satisfactory  manner  to  the  supposed  over- 
riding claims  of  the  police  power^  but  is  generally  respected 
in  legislative  practice.  The  principle  of  equality  has,  on 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          271 

the  other  hand,  to  contend  against  the  unceasing  demand 
for  legislation  confined  to  special  classes  and  subjects. 

Where  peculiar  conditions  demand  specific  remedies,  or 
where  the  public  interest  is  involved  hi  varying  degrees, 
or  where  there  are  special  problems  of  administration  and 
enforcement,  discrimination  or  differentiation  may  more 
nearly  approximate  the  demands  of  justice  than  a  mere 
mechanical  equality,  and  class  legislation  may  then  be  in 
perfect  harmony  with  the  equal  protection  of  the  law. 
Very  often,  however,  the  restriction  of  legislation  to  a 
particular  group  merely  means  the  following  of  the  line 
of  least  resistance:  there  is  a  strong  demand  for  relief  on 
the  part  of,  or  with  reference  to,  one  particular  calling, 
industry,  or  business,  and  while  the  same  measure  is 
capable  of  more  general  application,  it  has  not  sufficient 
strength  or  support  to  carry  as  a  general  policy,  or  the 
general  policy  meets  determined  opposition  on  the  part  of 
one  or  more  groups  claiming  exemption,  which  is  granted. 
It  is  this  kind  of  class  legislation  which  is  opposed  to  the 
spirit  of  constitutional  equality  and  against  which  some 
American  courts,  particularly  the  Supreme  Court  of 
Illinois,  have  set  themselves.  The  attitude  of  these 
courts  has  put  some  check  upon  loose  practices  of  special 
legislation  which  are  liable  to  great  abuse.  At  the  same 
time  it  makes  the  framing  of  legislation  a  difficult  and 
hazardous  undertaking.  The  standardization  of  all  rele- 
vant elements  of  differentiation  would  afford  an  ideal 
solution  of  the  difficulty;  but  neither  legislative  practice 
nor  judicial  control  has  been  so  far  able  to  standardize. 


272  STANDARDS  OF  AMERICAN  LEGISLATION 

And  it  is  safe  to  say  that  no  scientific  standard  could 
maintain  itself  against  the  strong  political  pressure  for 
special  legislation  which  will  always  find  a  plausible  plea 
for  which  it  may  hope  to  gain  judicial  approval.  The 
tendency  will  be  encouraged  by  the  tolerant  attitude  of 
the  Federal  Supreme  Court:  the  solitary  condemna- 
tion of  the  anti-trust  law  of  Illinois,  by  reason  of  its 
exemptions  (184  U.S.  540),  has  been  followed  by  an 
unvarying  deference  to  superior  local  knowledge  of  local 
conditions.  Such  recent  measures,  on  the  other  hand, 
as  the  workmen's  compensation  acts,  the  minimum-wage 
laws,  and  the  latest  types  of  factory  and  child-labor  laws 
show  a  careful  survey  of  the  entire  field  and  correspond- 
ingly careful  discrimination;  and  it  is  from  systematic 
legislation  of  this  kind  that  we  may  expect  superior 
standards  of  differentiation. 

We  are  so  accustomed  to  identify  the  term  "consti- 
tutional" as  applied  to  legislation  with  "judicially 
enforceable"  that  it  would  be  unwise  to  give  the  term 
any  other  meaning.  A  system  of  principles  of  legislation 
as  above  outlined  should  not  therefore  aim  to  receive  in 
its  entirety  the  status  of  constitutional  law.  Nor  could 
anyone  undertake  a  priori  to  state  which  principles  are  fit 
to  be  accepted  as  mandatory  rules.  The  principle  of 
conserving  values,  of  making  criminal  offenses  specific,  of 
joining  essentially  correlative  rights  and  obligations, 
might  advantageously  be  enforced  by  the  courts,  while 
the  more  remote  phases  of  correlation  as  well  as  most  of 
the  desiderata  covered  by  the  term  "standardization" 


THE  MEANING  OF  PRINCIPLE  IN  LEGISLATION          273 

represent  ideals  rather  than  imperative  essentials  of 
legislation.  The  injustice  which  results  from  their 
violation  is  of  the  kind  which  we  associate  with  the 
imperfection  of  human  institutions.  An  attempt  to 
formulate  specific  propositions  would  readily  indicate  to 
what  extent  principle  is  capable  of  being  raised  to  rule, 
but  there  is  no  present  prospect  of  so  comprehensive 
an  undertaking.  If  courts  could  be  persuaded  of  the 
existence  of  more  specific  principles  than  those  with 
which  they  operate,  their  decisions  would  speedily  reflect 
the  effect  of  those  principles  which  are  capable  of  judicial 
enforcement. 

From  a  wider,  and  particularly  from  a  constructive 
point  of  view,  judicial  enforceability  is,  however,  by  no 
means  a  necessary  attribute  of  principle;  on  the  contrary, 
many  principles  would  lose  much  of  their  force  if  applied 
inflexibly.  The  life  of  the  state  cannot  well  be  bound  in 
rigid  formulas,  and  it  is  hi  a  sense  an  advantage  of  extra- 
constitutional  over  constitutional  principles  that  they 
may  yield  in  an  emergency.  The  safeguard  of  the 
principle  in  normal  conditions  must  be  found  in  methods 
that  operate  antecedently,  and  the  experience  of  other 
nations  shows  that  such  methods  can  on  the  whole  be 
made  reliable  and  effective.  Even  the  operation  of  con- 
stitutional rules,  while  sufficiently  binding  to  create  at 
times  inconvenience,  will  yield  under  the  stress  of  circum- 
stances, and  is  therefore  not  as  absolute  in  practice  as 
in  theory. 


CHAPTER  VII 

CONSTRUCTIVE  FACTORS 

The  purpose  of  the  preceding  chapter  has  been  to 
indicate  the  existence  of  principles  of  legislation  apart 
from  recognized  doctrines  of  constitutional  law.  If  such 
principles  exist — and  the  attempted  analysis  claims  to  be 
neither  final  nor  exhaustive — it  is  of  importance  to  inquire 
by  what  methods  they  can  be  ascertained  and  made 
fully  available.  The  factors  to  be  primarily  considered 
are  the  courts  and  the  legislature,  and  the  examination 
will  involve  some  estimate  of  past  performance  as  well  as 
of  future  promise. 

THE   COURTS  AS   CONSTRUCTIVE   FACTORS 

The  function  of  the  courts  is  to  test  and  judge  legis- 
lation; not  to  frame  it.  We  can  no  more  expect  that 
the  courts  will  give  us  an  entire  system  of  principles  of 
legislation  than  that  they  will  give  us  a  code  of  private 
conduct.  If  then  we  think  of  the  courts  at  all  as  con- 
structive factors,  we  must  bear  in  mind  their  limited 
opportunities.  Where  the  legislative  standard  is  not 
intolerably  defective,  they  are,  generally  speaking, 
powerless  to  raise  it,  and  in  the  absence  of  a  corrective 
jurisdiction  a  court  will  feel  neither  under  any  duty  nor 
at  liberty  to  volunteer  suggestions  for  improvement. 
Constitutional  limitations  enforced  by  the  courts  will 

274 


CONSTRUCTIVE  FACTORS  275 

therefore  never  produce  any  but  the  most  rudimentary 
principles  of  legislation. 

The  great  opportunity  of  courts  lies  in  construction, 
both  statutory  and  constitutional.  Construction  is  essen- 
tially supplementary  legislation,  and  it  was  the  recognition 
of  this  fact  that  has  made  codifiers  jealous  of  the  judicial 
power  to  interpret,  which  they  sought  to  supersede  by 
prescribing  a  recourse  to  the  source  of  legislative  authority 
in  cases  of  ambiguity  or  doubt.  Statutory  construction 
is,  however,  inseparable  from  adjudication,  and  ultimately 
the  courts  are  sure  to  regain  and  retain  it;  in  Anglo- 
American  jurisprudence  no  attempt  has  ever  been  made 
to  deprive  them  of  it,  and  in  America  the  power  of  con- 
stitutional construction  has  been  added.  The  ambiguities 
of  language  afford  constant  opportunity  for  the  exercise 
of  a  praetorian  power  of  supplementing  the  letter  of  the 
law,  and  the  spirit  of  construction  will  frequently  deter- 
mine the  living  principle  of  statute  or  constitution. 

It  would  be  an  enormously  difficult  undertaking  to 
give  a  critical  estimate  of  the  judicial  construction  of 
statutes,  although  there  could  not  be  any  more  valuable 
contribution  to  jurisprudence;  but  the  construction  of  a 
constitution  is  a  matter  of  much  more  limited  scope,  and 
some  judgment  of  the  manner  in  which  this  function  has 
been  fulfilled  must  have  been  formed  in  the  mind  of  any 
student  of  constitutional  law.  There  has  been  on  the 
whole  a  very  well  defined  judicial  attitude  toward  ques- 
tions of  construction,  and  a  few  typical  cases  fairly  illus- 
trate the  principles  upon  which  courts  have  proceeded. 


276  STANDARDS  OF  AMERICAN  LEGISLATION 

The  judicial  attitude  appears  in  the  very  first  case  in 
which  the  judicial  power  over  legislation  was  exercised  by 
the  Supreme  Court  of  the  United  States.  The  Constitu- 
tion gives  to  the  Supreme  Court  original  jurisdiction  in 
certain  specific  cases  and  appellate  jurisdiction  with 
such  exceptions  as  Congress  shall  make.  With  reference 
to  such  a  grant  of  jurisdiction  it  is  possible  to  take  two 
opposite  views,  one  non-exclusive  and  the  other  exclusive. 
The  non-exclusive  view  is  that  the  specification  of  juris- 
diction means  that  the  grant  in  these  particulars  is  not  to 
be  impaired,  not  that  it  cannot  be  enlarged.  This  view 
leaves  the  legislative  power  as  far  as  possible  untouched. 
It  reconciles,  in  other  words,  constitutional  limitations 
and  legislative  functions,  having  due  regard  for  both. 
It  was  the  view  taken  by  the  members  of  the  First 
Congress,  who  were  fully  familiar  with  the  spirit  of  the 
Constitution,  in  framing  the  Judiciary  Act  of  Septem- 
ber 24,  1789,  which  enumerated  among  the  subjects  of 
the  original  jurisdiction  of  the  Supreme  Court  the  writ  of 
mandamus,  although  it  had  not  been  included  among  the 
cases  specified  in  the  Constitution.  The  exclusive  view, 
arguing  from  an  extreme  position,  is  that  affirmation 
necessarily  implies  negation,  and  that,  therefore,  the 
specification  of  the  subjects  of  jurisdiction  in  the  Consti- 
tution means  that  Congress  cannot  add  to  them.  This 
was  the  view  taken  by  Chief  Justice  Marshall  in  the  case 
of  Marbury  v.  Madison  (i  Cranch  137),  in  which  he  held 
the  Judiciary  Act,  so  far  as  it  allowed  original  applications 
to  the  Supreme  Court  for  the  writ  of  mandamus,  to  be 


CONSTRUCTIVE  FACTORS  #77 

unconstitutional.  That  this  view  was  not  the  only  one 
legally  possible  is  proved  by  the  fact  that  upon  the 
cognate  question  whether  the  grant  of  original  jurisdiction 
to  the  Supreme  Court  is  exclusive  hi  the  sense  that  no 
other  court  can  be  given  concurrent  jurisdiction,  the 
Supreme  Court  subsequently  came  to  the  conclusion  that 
the  grant  was  non-exclusive,  so  that  district  courts  can  be 
given  jurisdiction  in  cases  affecting  consuls  in  which  the 
Constitution  gives  original  jurisdiction  to  the  Supreme 
Court.1  It  is,  however,  also  true  as  a  matter  of  legislative 
or  constitutional  policy,  that  the  exclusive  view  is  the  one 
less  desirable,  for  the  decision  of  Judge  Marshall  has  had 
the  unfortunate  effect  that  the  only  court  which  can 
exercise  jurisdiction  in  mandamus  over  federal  officers  is 
the  purely  local  court  of  the  District  of  Columbia,  whereas 
it  has  become  a  common  practice  in  the  states  to  vest  hi 
the  highest  courts  original  jurisdiction  in  mandamus.  Yet 
such  is  the  authority  of  judicial  decisions  that  Judge 
Marshall's  construction  of  the  Constitution,  ill-advised 
as  it  was,  has  never  been  seriously  criticized. 

The  decision  has  struck  the  keynote  for  all  subsequent 
constitutional  construction.  It  is  perhaps  mainly  respon- 
sible for  the  doctrine  of  resulting  limitations  whereby 
merely  affirmative  clauses  of  the  Constitution  are  by 
their  implications  allowed  to  cripple  normal  and  neces- 
sary legislative  functions. 

It  is  obviously  desirable  that  powers  of  appointment 
and  removal  should  be  exercised  hi  accordance  with 

1  Willoughby,  Constitutional  Law,  sec.  557. 


278  STANDARDS  OF  AMERICAN  LEGISLATION 

permanent  rules.  As  soon,  however,  as  the  Constitution 
bestows  any  power  of  appointment  or  removal  this 
becomes  impossible;  for  the  official  vested  with  the  power 
cannot  bind  his  successor  and  the  constitutional  status  of 
his  power  renders  the  legislature  entirely  impotent.  The 
mere  fact  that  an  office  is  created  by  the  Constitution 
seems  to  prevent  the  full  application  of  civil-service  rules 
even  to  the  clerical  staff  of  that  office  (254  111.  i),  though 
as  to  this  position  there  is  some  dissent;  but  no  lawyer 
would  contend  that  the  governor's  power  of  appoint- 
ment given  to  him  by  the  Constitution  can  be  touched  by 
statute.  If  we  take  this  universally  accepted  view  as 
dictated  by  the  spirit  of  our  law,  it  shows  that  legal 
doctrines  are  likely  to  run  counter  to  wise  principles  of 
legislation;  if  the  Constitution  were  controlled  by  a  com- 
bination of  legislative  and  executive,  instead  of  by  judicial, 
interpretation,  a  legislative  regulation  in  furtherance  and 
not  in  impairment  of  constitutional  powers  would  appear 
unobjectionable.  The  judicial  view  is  based  upon  the 
spirit  of  extreme  assertion,  while  the  legislative  view 
would  represent  the  spirit  of  reconciliation. 

The  entire  relation  between  state  and  federal  powers 
is  controlled  by  the  doctrine  that  the  possession  or  non- 
possession  of  authority  must  be  determined  by  the  pos- 
sible consequences  of  its  conceivable  exercise  to  the  ex- 
treme limit.  The  theory,  long  disregarded  in  practice, 
that  abuse  and  perversion  of  legislative  power,  unlike  the 
abuse  of  administrative  discretion,  cannot  be  checked  by 
the  courts,  leads  to  the  uncompromising  negation  of 


CONSTRUCTIVE  FACTORS  279 

governmental  attributes  which,  pushed  beyond  reason, 
might  jeopardize  paramount  or  co-ordinate  interests; 
whereas  upon  a  theory  of  an  effective  judicial  control  for 
checking  abuses,  such  as  has  as  a  matter  of  fact  been 
repeatedly  exercised,  these  attributes  might  be  conceded 
to  advantage.  The  disallowance  of  a  useful  function 
from  a  fear  of  its  abuse  is  a  legal  but  not  a  political 
attitude. 

Upon  the  plea  that  the  power  to  tax  is  a  potential 
power  to  destroy,  the  doctrine  has  been  established  that 
the  United  States  may  not  tax  instrumen  tali  ties  of  state 
government  and  that,  on  the  other  hand,  the  states  may 
tax  neither  instrumentalities  of  federal  government  nor 
interstate  commerce. 

With  regard  to  interstate  commerce  it  has  not  been 
possible  to  carry  the  doctrine  to  its  logical  conclusions, 
and  a  complex  body  of  law  has  arisen,  the  distinctions  of 
which  are  a  fruitful  source  of  controversy;  but  with 
regard  to  federal  property  the  Supreme  Court  strictly 
insists  upon  exemption  from  state  taxation,  although  the 
property  is  held  without  reference  to  any  governmental 
functions,  as  where  lands  are  forfeited  to  the  United 
States. 

The  prevailing  opinion  supported  by  the  decision  of  a 
federal  court  (64  Fed.  833)  is  that  states  cannot  tax 
patents  or  copyrights  because  they  are  granted  by  the 
United  States.  If  this  view  is  correct,  it  would  follow 
that  if  our  private  law  should  be  nationalized,  as  is  that 
of  Germany  and  Switzerland,  all  property  rights,  being 


280  STANDARDS  OF  AMERICAN  LEGISLATON 

then  derived  from  federal  law,  would  cease  to  be  taxable 
by  the  states — surely  a  proposition  absolutely  inadmis- 
sible. Such  inconveniences  are  not  entirely  speculative. 
When  the  state  of  South  Carolina  monopolized  the  liquor 
traffic,  it  claimed  exemption  from  the  federal  internal- 
revenue  tax.  The  United  States  Supreme  Court  refused 
to  allow  this  plea,  pointing  out  that  a  state  by  becoming 
entirely  socialistic  might  cut  off  all  sources  of  federal 
revenue  within  its  jurisdiction.  This  argument,  however, 
works  also  the  other  way,  for  how  could  the  states  get 
their  needed  revenue  if  the  railroads  should  be  national- 
ized by  the  United  States  ?  When  national  banks  were 
organized,  Congress  found  it  necessary  to  subject  them 
to  state  taxation.  If  railroads  were  nationalized,  not 
only  would  their  property  have  to  be  made  subject  to 
local  taxation,  but  if  there  were  a  state  income  tax  it 
would  be  impossible  to  exempt  all  officials  and  employees 
of  the  nationalized  railroads  from  such  income  taxation. 
It  may  indeed  be  asked  what  sense  or  equity  there  is  in 
the  present  exemption  of  official  salaries  or  of  the  income 
from  public  securities  from  the  taxing  power  of  a  para- 
mount or  co-ordinate  jurisdiction.  Apparently  it  was 
the  intent  of  the  framers  of  the  income  tax  amendment 
to  make  all  exemptions  a  matter  of  congressional  discre- 
tion and  not  of  lack  of  congressional  power.  This  is  as 
it  should  be  and  is  in  accordance  with  the  prevailing 
German  practice.  Not  only  do  the  officials  of  the  Em- 
pire pay  state  and  local  income  taxes,  but  the  state  sub- 
jects its  property  to  local  taxation  and  the  Empire  claims 


CONSTRUCTIVE  FACTORS  28l 

in  each  state  only  those  privileges  which  the  state  claims 
for  itself;  the  Imperial  Bank  is  expressly  exempt  from 
state  income  and  excise  taxes,  but  pays  property  taxes, 
and  it  is  argued  that  since  the  statute  speaks  of  exemp- 
tion from  state  taxes  only,  the  bank  is  liable  to  the  local 
income  taxes.1 

Exemptions  may,  of  course,  be  wise  and  proper,  and  in 

no  event  could  any  jurisdiction  tolerate  a  taxation  of  its 
property  or  of  its  instrumentalities  by  another  jurisdiction, 
if  such  taxation  were  either  confiscatory  or  discriminating. 
Upon  any  theory  of  co-ordination  such  taxation  would 
have  to  be  held  to  be  illegitimate  and  invalid.  The 
legitimate  claim  of  the  taxing  power  can  extend  only  to 
such  things  appertaining  to  a  co-ordinate  government  as 
are  of  the  same  kind  and  nature  as  other  subjects  of 
taxation,  and  if  it  is  so  limited  there  is  no  force 
in  the  argument  that  a  taxing  power  is  a  power  of 
destruction. 

If  the  doctrine  of  reciprocal  exemption  sounds  plausible 
in  logic,  in  practice  it  works  inequitable  and  sometimes 
intolerable  results.  It  furnishes  another  illustration  of  a 
judicial  doctrine  that  for  constructive  legislative  purposes 
ought  to  be  rejected. 

Perhaps  no  better  illustration  can  be  found  of  the 
difference  between  constitutional  doctrines  and  principles 
of  legislation  than  the  relation  between  legislative  policy 
and  vested  rights.  Important  phases  of  the  inviolability 

'Laband,  Staatsrecht,  II,  157,  852;  Prussian  Act  July  u,  1822;  July  27, 
1885. 


282  STANDARDS  OF  AMERICAN  LEGISLATION 

of  vested  rights  are  expressly  recognized  in  the  Consti- 
tution, and  from  the  beginning  they  have  stood  in  the 
center  of  the  doctrine  of  inherent  limitations.  In  rela- 
tively recent  times,  however,  several  qualifying  doctrines 
have  gained  ground  which  are  based  on  overriding 
claims  of  public  interest:  that  the  police  power  can- 
not be  bargained  away,  that  a  legislative  policy  cannot 
be  forestalled  by  private  contracts  that  would  thwart  its 
enforcement,  and  that  certain  forms  of  private  property 
are  inherently  and  ab  initio  qualified  by  paramount 
public  rights  and  powers,  the  latter  doctrine  being 
chiefly  applicable  to  navigable  waters.  There  can  be  no 
doubt  that  the  enormous  expansion  of  the  sphere  of 
legitimate  public  interest  required  a  revision  of  the 
theory  of  vested  rights.  The  written  constitutions  have 
not  undertaken  to  cope  with  this  task  and  offer  no 
solution.  The  solution  might  have  been  found  in  legis- 
lative practice;  and,  failing  that,  the  courts  had  an 
opportunity  for  a  constructive  development  of  the 
Constitution.  It  is  interesting  to  note  that  the  courts 
again  proceeded  upon  the  theory  that  where  an  extreme 
claim  of  vested  right  antagonizes  legitimate  public 
interest  the  claim  of  vested  right  must  be  rejected 
entirely. 

The  most  striking  case  is  that  of  Louisville  &*  Nashville 
R.  Co.  v.  Mottley  (219  U.S.  465).  The  Interstate  Com- 
merce Act  forbids  free  railroad  passes.  A  person,  many 
years  before  the  enactment  of  the  law,  had  been  injured 
by  a  railroad  accident,  and  in  settlement  for  his  claim  for 


CONSTRUCTIVE  FACTORS  283 

damages  had  accepted  a  free  pass  for  life.  The  court  held 
that  this  pass  was  invalidated  and  rendered  illegal  by  the 
Interstate  Commerce  Act  on  the  ground  that  legislative 
policy  cannot  be  frustrated  or  forestalled  by  private 
contracts  inimical  to  its  objects.  The  decision  seems 
inequitable;  is  it  sound  ?  Contracts  made  in  fraud  of  an 
impending  statute  have  been  judicially  avoided  (Hendrick- 
son  v.  New  York,  160  N.Y.  144);  in  England  they  are 
dealt  with  by  express  statutory  provisions.  This  con- 
tract was  not  of  that  kind.  Bona  fide  contracts  may 
likewise  interfere  with  a  new  statutory  policy;  whether 
it  is  constitutional  or  otherwise  legitimate  to  invalidate 
such  contracts  need  not  be  here  discussed.  The  contract 
before  the  court  was  of  an  infrequent  kind,  in  nowise 
calculated  to  disturb  the  new  policy.  The  integrity  of 
contractual  obligation  is  a  constitutional  policy  of  the 
first  order  and  should  be  maintained  wherever  possible. 
It  would  have  been  legitimate  for  the  court  to  read  into 
the  statute  an  implied  exception  dictated  by  the  spirit  of 
the  Constitution,  since  Congress  obviously  had  no  intent 
one  way  or  another  with  regard  to  so  exceptional  a  case, 
purely  the  saving  of  such  a  contract  would  have  been  in 
accordance  with  the  spirit  of  compromise  that  should 
preside  over  legislation;  what  the  court  did,  however, 
was  to  argue  from  extreme  assumptions  and  possibilities 
and  sacrifice  substantial  equities  to  abstract  theories  of 
power.1 

1  Judicial  construction  is  here  considered  only  in  its  bearing  upon  principles 
of  legislation.     While  I  believe  that  in  the  cases  cited  the  construction  has 


284  STANDARDS  OF  AMERICAN  LEGISLATION 

It  may  be  said  that  the  spirit  of  extreme  insistence 
upon  abstract  power  is  not  a  peculiarity  of  judicial  inter- 
pretation, but  is  also  the  spirit  of  American  legislation. 
This  is  partly,  though  not  altogether,  true.  An  uncon- 
trolled popular  legislature  is  indeed  likely  to  be  a  very 
jealous  guardian  of  public  rights;  and  private  rights  that 
encroach  upon  the  public  domain,  be  it  of  property  or  of 
policy,  particularly  private  rights  that  savor  of  privilege 
or  monopoly,  are  not  likely  to  receive  tender  consideration. 
The  uncompensated  revocation  of  lottery  and  even  of 
slaughterhouse  charters  originated  with  the  legislature, 
and  then  the  courts  laid  down  the  doctrine  of  the  inalien- 
ability of  the  police  power.  In  dealing  with  structures 
standing  in  the  way  of  the  improvement  of  navigable 
waters,  Congress  merely  failed  to  make  express  provision 
for  compensation,  undoubtedly  meaning  to  put  that 
question  up  to  the  courts.  In  denying  the  right  to 
compensation1  the  court  may  merely  mean  that  the  only 
question  left  to  it  was  a  question  of  constitutional  right, 
and  that  the  legislature  did  not  exceed  the  limits  of  its 
extreme  power;  but  the  extreme  of  power  then  tends  to 
become  the  norm  of  legislation.  For  unfortunately  the 
only  utterances  upon  the  constitutional  justice  of  legis- 

been  unsound,  the  general  opinion  of  the  profession  indorses,  or  at  least  does 
not  question,  the  prevailing  construction  of  taxing  powers  and  the  treatment 
of  vested  rights.  And  I  fully  realize  that  in  a  sense  they  represent  the  unyield- 
ing spirit  of  judicial  legislation;  if  so,  the  main  argument  is  strengthened  and 
not  weakened.  All  I  urge  is  that  the  judicial  spirit,  being  what  it  is,  is  not  the 
most  desirable  spirit  from  which  to  develop  principles  of  legislation,  and  in  so 
far  as  the  judicial  spirit  through  constitutional  construction  does  control 
principles  of  legislation  the  result  is  unfortunate. 
1  Union  Bridge  Co.  v.  U.S.,  204  U.S.  365. 


CONSTRUCTIVE  FACTORS  285 

lation  that  carry  any  authority  are  those  of  the  courts; 
from  this  lawyers  are  likely  to  conclude  that  there  are  no 
non-judicial  principles  applicable  to  constitutional  rights; 
and  legislators  (many  of  whom  are  lawyers)  seem  to 
believe  that  the  principles  enforced  by  the  courts  are  the 
true  and  only  principles  of  legislation.  How  much  more 
then  will  this  be  the  case  where  the  courts  apply  inequi- 
table principles  to  legislation  which  is  capable  of  bearing 
a  more  liberal  construction,  or  where  the  courts  force 
an  illiberal  construction  of  the  Constitution  upon  the 
legislature.  This  latter  phase  is  illustrated  by  the  formal 
or  style  provisions  of  the  Constitution.  Requirements 
regarding  title  or  amending  acts  have  become  stumbling- 
blocks  to  legislation.  Intended  to  check  certain  evils, 
their  operation  should  have  been  confined  to  the  narrowest 
limits,  since  constitutional  impediments  of  this  kind  are 
intrinsically  undesirable,  and  on  the  whole  this  has  been 
recognized  by  the  courts;  but  there  has  been  just  enough 
of  purely  legalistic  construction  to  create  an  apprehension 
that  a  liberal  legislative  interpretation  of  the  constitu- 
tional requirement  may  prove  fatal  to  the  validity  of  a 
statute,  with  the  result  that  the  legislature  itself  becomes 
unduly  technical  and  blunders  through  its  very  attempt 
at  faithful  compliance.  Directly  or  indirectly  the  courts 
have  become  responsible  for  formal  standards  of  legis- 
lation that  stand  in  the  way  of  the  simplest  and  most 
effective  expression  of  the  legislative  will. 

The  spirit  of  adjudication  is  after  all  a  very  different 
one  from  the  spirit  of  legislation.    Adjudication  decides 


286  STANDARDS  OF  AMERICAN  LEGISLATION 

between  contentions  for  the  full  measure  of  abstract 
rights  carried  to  their  logical  conclusions,  unaffected  by 
the  possible  expediency  of  indulgence  and  concession,  for 
courts  deal  with  human  relations  in  an  atmosphere  of 
controversy  and  extreme  self-assertion;  they  touch  life 
mainly  at  the  point  of  abnormal  disturbance.  The 
function  of  legislation,  on  the  other  hand,  is  to  prevent 
controversy,  and  is  therefore  dominated  by  the  spirit  of 
compromise  and  adjustment;  it  is  for  this  reason  that 
legislative  rights  are  likely  to  be  more  qualified  than 
common-law  rights.  The  result  is  that  the  principle  of 
judicial  rule  or  justice  is  the  minimum,  the  principle  of 
legislative  rule  or  justice  the  maximum,  of  reciprocal 
concession.  If  so,  judge-made  law  is  ill-suited  for  guiding 
legislation,  and  we  should  not  look  to  the  courts  for  the 
development  of  rules  of  legislative  justice. 

It  is  of  course  true  that  legislative  justice  has  often 
been  inferior  to  judicial  justice,  and  that  the  lack  of  con- 
fidence in  the  former  accounts  for  the  power  of  judicial 
review.  Statutes  against  which  the  due-process  clause 
has  been  invoked  have  generally  been  defective  in  some 
respect,  and  at  times  they  have  been  grossly  unjust;  in 
these  cases  the  courts  were  very  likely  to  rise  above,  and 
it  was  hardly  possible  that  they  should  fall  below,  the 
standard  of  legislative  justice,  unless  indeed  there  was  a 
broad  issue  between  individualism  and  social  reform. 
But  apart  from  this,  in  comparing  legislative  with  judicial 
justice  in  America  it  is  necessary  to  bear  in  mind  that 
the  courts  represent  our  best  in  government  while  our 


CONSTRUCTIVE  FACTORS  287 

legislatures  do  not;  that  in  any  event  the  courts  are,  or 
for  a  long  time  have  been,  the  only  trained  and  profes- 
sional organs  that  we  have  in  our  civil  institutions.  To 
estimate  fairly  the  capacity  for  constructive  work,  legis- 
lation must  be  studied  where  its  methods  are  equal  to 
those  of  the  courts,  and  not  exclusively  on  the  basis  of 
American  experience. 

LEGISLATIVE  PRACTICE  AS  A  CONSTRUCTIVE  FACTOR 

In  European  countries  in  which  legislation  is  entirely 
uncontrolled  by  the  courts,  its  quality  is,  generally 
speaking,  higher  than  it  is  in  America.  This  is  un- 
doubtedly the  judgment  of  all  who  have  had  occasion 
to  institute  comparisons.  Such  a  comparison  should  not 
have  primary  reference  to  the  social,  economic,  or  political 
content  of  laws.  There  may  be  ground  for  believing  that 
our  election  laws,  our  married  women's  acts,  our  juvenile 
court  laws,  and  perhaps  others  are  more  advanced  than 
those  of  France  or  Germany,  and  if  our  social  legislation 
may  seem  backward,  that  fact  is  due  to  reasons  which 
have  very  little  to  do  with  the  problems  here  discussed. 
Nor  should  attention  be  directed  merely  to  matters  of 
style  which,  even  if  we  give  them  all  the  importance  they 
deserve,  are  after  all  a  secondary  consideration.  But  we 
should  take  as  a  standard  of  comparison  those  juristic 
and  technical  features  of  legislation  which  in  France  and 
Germany  form  the  subject-matter  of  what  is  called  ad- 
ministrative law,  taking  the  term  in  the  wide  sense  of 
covering  all  matters  upon  which  officials  have  to  act  in 


288  STANDARDS  OF  AMERICAN  LEGISLATION 

carrying  out  and  enforcing  the  law.  We  should,  in  other 
words,  apply  the  principles  which  have  been  stated  in  the 
foregoing  chapter,  and  others  of  the  same  nature,  to 
modern  statutes  abroad  and  to  our  own  statutes  and 
determine  where  they  are  better  observed,  where  there  is 
better  correlation  or  standardization,  where  there  is  a 
more  scrupulous  regard  for  vested  rights  or  for  procedural 
protection. 

It  would  not  be  a  difficult  matter  to  demonstrate  the 
superiority  in  these  respects  of  European  legislation  to 
our  own,  nor  would  there  be  much  doubt  as  to  the  reasons 
for  this  superiority.  The  striking  difference  between 
legislation  abroad  and  in  this  country  is  that  under  every 
system  except  the  American  the  executive  government 
has  a  practical  monopoly  of  the  legislative  initiative. 
In  consequence,  the  preparation  of  bills  becomes  the 
business  of  government  officials  responsible  to  ministers, 
these  government  officials  being  mainly,  if  not  exclusively, 
employed  in  constructive  legislative  work.  In  France 
and  Germany  the  government  initiative  of  legislation  has 
been  established  for  a  long  time  and  the  right  of  mem- 
bers to  introduce  bills  is  hedged  about  and  practically 
negligible. 

There  are  two  main  reasons  why  executive  initiative 
should  lead  to  a  superior  legislative  product.  The  one 
is  that  it  is  the  inevitable  effect  of  professionalizing  a 
function  that  its  standards  are  raised.  The  draftsman 
will  take  a  pride  in  his  business  and  in  course  of  time  will 
become  an  expert  in  it.  He  learns  from  experience,  and 


CONSTRUCTIVE  FACTORS  289 

traditions  will  be  formed.  This,  of  course,  presupposes 
that  he  is  a  permanent  official.  In  addition,  he  will  be 
responsible  to  his  chief,  who  naturally  resents  drafting 
defects  that  expose  him  to  parliamentary  non-partisan 
criticism.  In  Germany  the  best  juristic  talent  that  goes 
into  the  government  service  is  utilized  for  the  preparation 
of  legislative  projects,  and  these  are  regularly  accom- 
panied by  exhaustive  statements  of  reasons  which  enjoy 
considerable  authority.  Drafts  of  important  measures 
are  almost  invariably  published  long  before  they  go  to 
the  legislature,  in  order  to  receive  the  widest  criticism, 
and,  as  the  result  of  criticism,  are  often  revised  and  some- 
times entirely  withdrawn.  The  individual  author  often 
remains  unknown  and  the  credit  of  the  government  stands 
behind  the  work. 

The  second  reason  is  that  when  the  government  intro- 
duces a  bill  the  parliamentary  debate  is  somewhat  in  the 
nature  of  an  adversary  procedure,  or  at  least  there  is,  as 
it  were,  a  petitioner  and  a  judge.  The  minister  or  his 
representative  (in  Germany  and  France  the  experts 
appear  in  parliament  as  commissioners,  while  in  England 
only  parliamentary  secretaries  may  speak — much  to  the 
disadvantage  of  the  English  debate)  has  to  defend  the 
measure  against  criticism,  and  legal  imperfections  or 
inequities  would  be  legitimate  grounds  of  attack.  The 
liability  to  criticism  insures  proper  care  in  advance. 
Together  with  the  executive  initiative  goes  a  practical 
limitation  of  the  number  of  bills  introduced,  an  increased 
relative  importance  of  each  measure,  and  proportionately 


ago  STANDARDS  OF  AMERICAN  LEGISLATION 

greater  attention  bestowed  on  it.  Where  this  form  of 
legislative  preparation  and  procedure  has  been  observed, 
it  is  not  necessary  to  seek  further  reasons  for  a  good 
quality  of  the  product. 

The  connection  between  executive  initiative  and  the 
professionalizing  of  the  work  of  drafting  bills  is  shown  by 
Sir  Courtenay  Ilbert  in  his  work  on  the  Mechanics  of  Law 
Making  (ch.  4).  Until  1832  even  very  important  meas- 
ures were  private  members'  acts.  From  that  time  on  the 
leading  bills  originated  more  and  more  with  the  govern- 
ment, the  duty  of  preparation  devolving  at  first  in  the 
main  on  the  Home  Secretary  and  later  on  the  Treasury. 
The  responsible  ministers  found  it  necessary  from  the 
beginning  to  appoint  men  to  take  charge  of  the  work. 
Thus  we  find  from  1837  on  a  succession  of  draftsmen,  and 
it  is  an  interesting  fact  that  the  post  from  that  time  on  has 
been  held  by  only  six  men,  Sir  Courtenay  Ilbert  himself 
having  served  as  Parliamentary  Counsel  of  the  Treasury 
(the  title  of  the  office)  until  he  became  Clerk  of  the 
House  of  Commons.  This  shows  that  the  work  was 
always  treated  as  non-partisan  and  was  sufficiently 
attractive  to  become  the  lifework  of  able  and  distin- 
guished men.  The  result  is  primarily  apparent  in  im- 
proved form  of  legislation;  but  if  conclusions  may  be 
drawn  from  a  necessarily  casual  and  inexhaustive  study 
of  modern  English  statutes,  there  has  also  been  an 
improvement  in  the  standardization  of  substantive  and 
administrative  provisions.  If  so  much  has  been  accom- 
plished through  the  efforts  and  the  influence  of  a  few 


CONSTRUCTIVE  FACTORS  291 

individuals,  it  can  be  readily  imagined  how  much  the 
cause  of  scientific  legislation  must  have  gained  by  a 
century  of  work  carried  on  in  French  and  German  govern- 
ment departments  by  men  highly  trained,  thoroughly 
expert  in  their  respective  fields,  and  held  to  exacting 
standards  by  official  discipline  and  tradition.  The  legis- 
lative product  under  such  conditions  will  be  largely  of 
the  same  high  caliber  as  the  judicial  product  has  been 
under  the  English  system  of  concentration  in  the  hands 
of  a  few  high-grade  judges. 

Increased  executive  participation  in  American  legislation. 
— It  is  not  uncommonly  urged  at  the  present  time  that 
executive  officers  be  given  a  right  to  appear  on  the  floor 
of  the  houses  of  the  legislature  and  to  participate  in 
debate.  It  would  not  be  a  much  more  radical  step  to 
give  the  chief  executive  a  right  to  introduce  bills.  He  has 
now  by  all  constitutions  the  right  to  recommend  legisla- 
tion, and  as  a  matter  of  power  there  is  no  reason  why  he 
should  not  present  his  recommendations  in  the  form  of 
bills.  This  would  not  give  the  measure  recommended  the 
parliamentary  status  of  a  bill  and  as  a  matter  of  politics 
might  prejudice  it;  but  to  give  it  such  status  would  not 
even  require  a  constitutional  amendment;  a  house  rule 
would  be  sufficient.  As  a  matter  of  fact,  the  chief 
executive  can  readily  find  members  to  bring  in  bills 
known  to  come  from  him  and  spoken  of  as  administration 
bills,  and  they  have  been  officially  recognized  as  such  by 
house  rules;1  but  their  status  would  gain  if  the  executive 

1  American  Political  Science  Review,  VII,  239. 


292  STANDARDS  OF  AMERICAN  LEGISLATION 

could  formally  appear  as  their  sponsor.  The  constitution 
of  Alabama  (art.  4,  sec.  70)  provides  that  the  governor, 
auditor,  and  attorney-general  shall,  before  each  regular 
session  of  the  legislature,  prepare  a  general  revenue  bill 
to  be  submitted  to  the  legislature  for  its  information,  to 
be  used  or  dealt  with  by  the  House  of  Representatives  as 
it  may  elect.  This  seems  to  give  the  bills  submitted  a 
regular  parliamentary  standing,  although  not  a  preferred 
standing.  It  would  not  be  for  the  present  practicable  or 
wise  to  curtail  substantially  the  right  of  members  to 
introduce  bills,  and  any  initiative  given  to  the  chief 
executive  would  have  to  be  left  to  work  out  its  own 
inherent  possibilities.  Even  in  Europe  the  government 
has  no  legal  monopoly  of  the  initiative,  and  its  practical 
monopoly  is  the  result  of  constitutional  relations  which 
do  not  exist  in  America.  It  is  not  impossible  that  even 
under  our  conditions  the  executive  may  finally  obtain  a 
preponderant  share  in  legislative  initiation.  But  such  a 
development  would  take  a  long  time,  and  there  can  be  no 
thought  of  forcing  it.  We  should  therefore  not  look  in 
that  quarter  for  a  controlling  influence  upon  principles  of 
legislation. 

Defects  of  American  legislative  procedure. — The  charac- 
teristic features  of  American  legislative  constitution  and 
procedure  are  unfavorable  to  a  high  degree  of  workman- 
ship. Each  member  has  the  right  to  introduce  bills  and 
makes  use  of  it.  The  number  of  bills  introduced  is  so 
great  that  many  receive  no  consideration  whatever,  and 
this  inevitably  reacts  upon  the  care  in  preparation.  It 


CONSTRUCTIVE  FACTORS  293 

has  become  quite  common  for  introducers  of  bills  to 
admit  that  "of  course  the  bill  is  by  no  means  perfect," 
and  that  it  is  simply  the  framework  of  something  that  can 
be  made  acceptable.  The  authorship  and  sometimes  the 
sponsorship  are  unknown.  Many  bills  are  introduced 
"by  request,"  the  introducing  member  assuming  no  re- 
sponsibility. Indeed,  it  is  only  in  the  minority  of  cases 
that  responsibility  for  the  form  of  the  bill  can  be  definitely 
fixed,  and  even  if  the  draftsman  is  known  he  rarely  holds 
himself  answerable  for  defects  that  mar  the  bill  or  that 
may  eventually  lead  to  the  judicial  nullification  of  the 
statute. 

Apart  from  this  lack  of  initial  responsibility  the  course 
of  the  bill  through  the  legislature  nearly  always  lacks 
that  element  of  adversary  procedure  which  is  calculated 
to  discover  and  remedy  defects.  The  debates  on  the 
floor  of  the  house  can  naturally  hardly  ever  go  into  the 
discussion  of  details  which  must  be  reserved  for  com- 
mittee; in  committee  there  is  often  keen  and  valuable 
criticism,  and,  leaving  aside  the  absence  of  executive 
participation,  this  stage  may  be  as  well  handled  as  a 
committee  discussion  in  a  European  parliament.  But 
there  is  no  assurance  that  an  intelligent  adverse  interest 
will  develop  in  the  committee,  and,  if  not,  the  measure  is 
likely  to  be  accepted  in  reliance  upon  the  sponsor's  good 
intentions  and  sometimes  as  a  matter  of  courtesy;  for 
all  members  are  both  petitioners  and  granters  of  petitions, 
and  it  would  be  strange  if  there  were  no  mutual  accom- 
modation. There  is  no  definite  allotment  of  reciprocal 


294  STANDARDS  OF  AMERICAN  LEGISLATION 

responsibility  that  sharpens  both  wits  and  conscience. 
The  multiform  organization  of  the  legislature — two 
bodies  with  the  co-operation  of  the  executive — is  not 
utilized  for  functional  differentiation.  The  second  house 
of  the  legislature  merely  duplicates  the  work  of  the  first 
house,  and  this  duplication  may,  of  course,  serve  to 
discover  and  correct  defects.  In  European  countries  the 
upper  house  has  not  merely  a  different  political  com- 
plexion— with  this  we  are  not  concerned,  except  that  a 
higher  degree  of  conservatism  will  be  more  favorable  to 
vested  rights — but  it  is  generally  composed  of  men  of 
exceptional  legislative  or  judicial  experience  or  learning 
or  business  capacity,  so  that  it  is  peculiarly  well  qualified 
to  deal  with  technical  questions.  The  House  of  Lords, 
especially  since  it  has  been  shorn  of  political  power,  has 
become  primarily  a  revisory  body,  and  its  debates  show 
a  high  degree  of  expert  knowledge  and  criticism.  In  the 
United  States  the  governor  has  a  certain  revisory  power  in- 
cidental to  the  veto  power,  which  might  be  further  devel- 
oped if  adequate  time  were  given  to  the  governor  to  act  on 
bills  after  their  enactment  and  after  the  close  of  the  session. 
But  at  best  all  these  revisory  functions  cannot  cure  a  bill 
that  is  badly  drafted  except  by  rejecting  it.  The  work 
of  original  preparation  must,  in  many  respects,  remain 
controlling.  For  influence  in  legislation  executive  initia- 
tive without  the  veto  counts  for  more  than  the  veto 
without  the  initiative. 

Notwithstanding   the   disadvantages   of   unfixed   or 
unconcentrated  responsibility,  it  is  still  remarkable  that 


CONSTRUCTIVE  FACTORS  295 

the  experiences  of  many  years  should  not  have  been  able 
to  produce  in  legislative  bodies  definite  and  reasonably 
high  standards  of  workmanship  in  the  business  for  which 
they  mainly  exist.  Lack  of  continuity  between  legis- 
latures and  the  frequent  changes  hi  membership  account 
for  this  only  in  part,  for  the  defects  are  also  found  where 
these  handicaps  do  not  exist,  and  they  seem  to  belong  to 
legislative  bodies  in  general.  Perhaps  the  reasons  for 
the  indifference  to  legislative  technique  must  be  found  in 
the  predominance  of  political  interests  and  in  the  power 
of  traditions  which  perpetuate  low  as  well  as  high 
standards.  A  large  body  responds  with  genuine  interest 
only  to  appeals  of  a  vital  and  human  nature,  and  prin- 
ciples of  legislation  lack  that  quality.  One  can,  however, 
easily  imagine  that  if  high  standards  had  once  established 
themselves,  even  a  large  legislative  body  might  be  careful 
and  zealous  of  their  maintenance. 

English  private-bill  legislation. — There  is  to  my  knowl- 
edge only  one  instance  in  which  a  parliamentary  body 
has  by  itself  produced  a  method  of  procedure  having 
primary  reference  to  the  observance  of  principle  and 
the  maintenance  of  right,  and  that  is  the  English 
method  of  private-bill  legislation.  This  is  used  wherever 
application  is  made  to  Parliament  for  the  grant  of 
powers  of  local  government  or  for  the  authorization  of 
public  works  or  undertakings  or  services  that  require  the 
use  of  highways  or  the  exercise  of  powers  of  condemnation. 
The  procedure,  which  resembles  a  judicial  proceeding, 
leaving  only  slightly  more  room  for  discretion,  has  been 


296  STANDARDS  OF  AMERICAN  LEGISLATION 

fully  described  by  Mr.  Lowell  in  his  work  upon  the  Gov- 
ernment of  England  (chapters  19  and  20),  and  the  details 
are  set  forth  with  great  fulness  in  Mr.  May's  Treatise  on 
Parliamentary  Procedure.  Its  main  points  are:  fixed 
forms  of  application,  notices  to  adverse  parties,  pre- 
cautions against  the  grant  of  novel  powers,  examination 
of  schemes  by  official  experts,  and  regular  hearings — all 
laid  down  in  an  elaborate  code  of  standing  orders. 
Nothing  like  it  has  ever  been  developed  in  connection 
with  special  legislation  in  the  United  States.  It  is  to  be 
noted  that  the  system  in  England  originated  in  the 
House  of  Lords,  a  permanent  body,  and  was  apparently 
due  hi  the  main  to  the  efforts  of  one  peer,  who  for  many 
years  was  chairman  of  the  committee  in  charge  of  private 
bills;  its  excellence  commended  itself  to  the  House  of 
Commons,  which  adopted  substantially  the  same  pro- 
cedure. 

The  private-bill  procedure  in  England  has  elicited  the 
admiration  of  all  foreign  students,  although  its  great 
expense  is  a  serious  flaw.  When,  however,  it  is  con- 
sidered with  reference  to  its  applicability  to  legislation  in 
general,  it  appears  after  all  as  a  very  specialized  instru- 
ment. What  is  done  in  England  by  special  acts  is  done 
in  the  United  States  under  general  statutes,  so  that  the 
machinery  of  legislation  in  particular  cases  is  entirely 
dispensed  with  and  the  observance  of  general  principles  is 
secured  in  a  much  simpler  manner.  England  has  pre- 
ferred not  to  grant  the  power  required  by  public-service 
companies  by  general  provision  and  was  therefore 


CONSTRUCTIVE  FACTORS  297 

compelled  to  substitute  a  scheme  of  parliamentary  ad- 
ministration. 

Legislation  being  used  for  the  purpose  of  adminis- 
tration, it  seeks  to  attain  administrative  uniformity,  and 
this  the  private-bill  procedure  in  the  main  accomplishes. 
Prima  facie  each  scheme  has  to  conform  to  stereotyped 
standards,  and  care  is  taken  that  deviations  are  not 
sanctioned  inadvertently;  but  from  time  to  time  new 
clauses  appear  which  gradually  become  common  and 
thus  pave  the  way  for  new  norms.  Thus  a  special  report 
on  police  and  sanitary  regulation  bills  made  in  1898*  said 
that  the  time  had  arrived  for  including  in  a  public  bill 
many  of  the  clauses  then  frequently  introduced  in  private 
bills  and  invariably  accepted  by  Parliament.  Private- 
bill  legislation,  in  other  words,  is  an  excellent  way  of 
preparing  general  legislation,  but  of  course  not  to  be 
thought  of  as  simply  a  means  toward  that  end.  Our 
general  railroad  and  banking  acts  have  likewise  grown 
upon  the  basis  of  special  acts,  but  the  abrogation  of 
special  acts  has  nevertheless  been  desirable  and  advan- 
tageous. When,  moreover,  we  examine  the  standing 
orders  governing  private  bills,  we  find  that  they  cover 
none  of  the  fundamental  principles  of  legislation  which 
are  enforced  by  our  courts  as  constitutional  limitations 
(non-discrimination,  public  purpose,  compensation,  etc.), 
and  the  index  in  Mr.  May's  Treatise  does  not  even  con- 
tain such  words  as  property,  vested  rights,  injury,  or 
compensation.  The  standing  orders  secure  procedural 

1  Commons  Papers,  1898,  Vol.  2,  No.  291,  p.  355. 


298  STANDARDS  OF  AMERICAN  LEGISLATION 

safeguards,  and  substantive  principles  are  left  to  custom, 
tradition,  and  the  conservative  sense  of  Parliament. 
Even  as  respects  procedural  safeguards  the  private  bill  is 
treated  as  an  issue  between  petitioners  and  certain 
definite  and  particularly  interested  contestants;  outsiders 
representing  the  general  public  have  a  locus  standi  only 
under  considerable  restrictions;  only  the  public  govern- 
ment departments  are  given  ample  opportunity  for  notice 
and  supervision.  A  report  of  1902  calls  attention  to  the 
desirability  of  an  examination  of  unopposed  bills  in  the 
public  interest  and  in  the  interest  of  economy,  since  it 
may  be  to  the  interest  of  no  private  individual  to  oppose 
a  measure.1  As  a  means  of  guarding  general  public 
interests  the  system  has  therefore  not  been  adequately 
tried,  and  it  will  be  observed  that  in  England  it  has  never 
been  applied  to  general  legislation  involving  matters  of 
public  policy,  not  even  to  the  committee  stage  of  delibera- 
tion which  is  reserved  for  the  technical  improvement 
of  measures.  Altogether,  while  the  English  system  of 
private-bill  legislation  is  valuable  for  its  purposes,  its 
purposes  have  otherwise  been  accomplished  in  America, 
and  the  needs  of  general  legislation  are  not  served  by  it. 
Improvement  of  legislative  procedure. — It  would  prob- 
ably be  a  great  mistake  in  any  event  to  try  to  force  a 
higher  quality  of  legislative  work  by  imposing  through 
the  Constitution  new  procedural  requirements.  The 
present  rules  of  procedure  have  been  devised  by  the 
legislative  bodies  themselves  in  accordance  with  their 

1  Commons  Papers,  1902,  Vol.  7,  No.  378,  p.  322. 


CONSTRUCTIVE  FACTORS  299 

supposed  needs;  the  placing  of  a  number  of  them  in 
the  Constitution  has  added  little  to  their  effectiveness, 
but  has  increased  the  technical  grounds  of  objection 
to  the  validity  of  statutes,  and  the  most  elaborately 
framed  safeguards  will  prove  unavailing  if  not  supported 
by  tradition  or  by  a  strong  legislative  conviction  of  their 
wisdom  and  necessity.  If  an  improvement  can  be 
effected  by  procedure,  it  should  be  done  through  the 
medium  of  voluntary  and  flexible  house  rules.  Appro- 
priate requirements  regarding  the  introduction  of  bills 
might  lead  to  greater  care  in  preparation  and  fix  respon- 
sibility; but  the  gam  would  probably  be  confined  to 
matters  of  style  and  form. 

A  very  noteworthy  scheme  was  presented  in  1913  to 
the  legislature  of  Illinois,  but  failed  to  become  law.  The 
bill  provided  for  a  joint  legislative  commission  composed 
of  the  governor,  lieutenant-governor,  speaker  of  the 
House,  chairmen  of  the  Committees  on  Appropriation  of 
the  Senate  and  the  House,  chairmen  of  the  Committees 
on  Judiciary  of  the  Senate  and  the  House,  together  with 
five  other  senators  and  five  other  members  of  the  House. 
The  purpose  of  this  commission  would  have  been  to  pre- 
pare in  advance  of  a  legislative  session  a  program  of 
legislation  with  drafts  of  bills  on  subjects  investigated  by 
the  commission,  and  the  commission  was  given  power  to 
that  end  to  appoint  special  committees  of  its  own  mem- 
bers or  others  to  study  particular  problems  and  draft 
bills.  Nothing  short  of  actual  experience  could  determine 
the  value  of  such  a  plan  or  the  alterations  that  might  be 


300  STANDARDS  OF  AMERICAN  LEGISLATION 

required  in  it,  but  it  will  be  noted  that  it  forces  nothing 
on  the  legislature  and  creates  no  new  constitutional 
problems. 

Perhaps  the  greatest  hope  for  establishing  constructive 
principles  of  legislation  lies  in  the  further  development  of 
plans  that  have  already  been  tried,  and  of  these  four 
deserve  particular  notice:  (i)  the  preparation  of  bills 
by  special  commissions;  (2)  the  delegation  of  power 
to  administrative  commissions;  (3)  the  organization  of 
drafting  bureaus,  and  (4)  the  codification  of  standing 
clauses. 

i.  Legislative  commissions  for  the  preparation  of  im- 
portant measures:  Commissions  for  revising  and  codify- 
ing laws  have  been  familiar  in  American  legislation  from 
an  early  period,  but  the  practice  of  creating  commissions 
for  particular  measures  seems  to  be  of  recent  date,  while 
in  England  it  has  been  established  for  many  years.  It 
might  be  interesting  to  ascertain  which  of  the  principal 
reform  statutes  of  England  since  1830  have  been  originated 
by  royal  commission.  In  America  a  similar  inquiry 
would  probably  show  very  few  instances  during  the 
nineteenth  century;  to  judge  from  the  Carnegie  Institu- 
tion indexes  of  economic  material,  neither  in  New  York 
nor  in  Massachusetts  were  any  of  the  important  legis- 
lative measures  before  1900  (married  women,  liquor,  civil 
service,  ballot  reform)  preceded  by  commission  study  or 
report. 

The  most  conspicuous  instance  of  the  employment  of 
commissions  for  the  preparation  of  legislation  has  been 


CONSTRUCTIVE  FACTORS  301 

in  connection  with  the  workmen's  compensation  acts; 
less  generally  the  same  method  has  been  pursued  for 
mining  and  factory  laws  and  for  land-title  registra- 
tion. The  commission  generally  holds  public  hear- 
ings, gets  opinions  hi  writing,  informs  itself  as  to 
similar  laws  in  other  jurisdictions,  summarizes  its  con- 
clusions, and  submits  a  bill.  The  result  is  generally 
a  measure  well  thought  out  and  well  formulated.  Even 
where  the  subject  is  very  controversial,  the  unity  of 
the  original  draft  secures  a  consistent  and  co-ordinated 
statute. 

2.  The  delegation  of  power  to  administrative  com- 
missions: The  grant  of  rule-making  powers  to  industrial 
commissions,  public-service  commissions,  boards  of  health, 
civil-service  commissions,  etc.,  is  often  advocated  mainly 
for  the  greater  flexibility  in  enactment  or  change.  From 
this  point  of  view  much  may  also  be  said  against  the 
practice,  since  an  unstable  policy  in  requirements  of  any 
kind  is  undesirable,  and  it  is  doubtful  whether  powers  are 
likely  to  be  exercised  in  that  spirit.  The  real  advantage, 
however,  of  such  powers  is  that  the  bodies  in  which  they 
are  vested  are  likely  to  be  better  trained  and  informed 
and  more  professional  in  their  attitude  than  legislative 
bodies,  and  that  the  powers  being  subordinate  in  character 
are  more  readily  controllable  by  reference  to  general 
principles,  whether  laid  down  by  statute  or  by  the 
common  law.  The  body  will  be  sufficiently  judicial  hi 
character  to  have  respect  for  precedent,  and  its  policy  is 
therefore  likely  to  be  less  variable  than  that  of  the 


302  STANDARDS  OF  AMERICAN  LEGISLATION 

legislature.  These  factors  will  tend  to  make  rule-making 
more  scientific  than  statute-making.  There  has  been  too 
little  experience  with  the  working  of  rule-making  bodies 
in  this  country  to  warrant  conclusions  of  much  value; 
the  precise  line  of  demarcation  between  matter  to  be 
determined  by  statute  and  matter  to  be  left  to  regulation 
has  not  yet  been  satisfactorily  settled,  and  procedural 
safeguards  for  the  making  of  rules  have  hardly  yet  been 
developed.  The  method  of  procedure  of  the  Federal 
Trade  Commission  is  novel,  and  is  perhaps  especially 
adapted  to  the  delicate  and  controversial  problems  with 
which  it  is  called  upon  to  deal,  but  its  working  will  be 
watched  with  interest,  and  it  may  become  a  valuable 
precedent  for  delegating  quasi-legislative  powers  in  order 
that  rules  may  be  gradually  developed  upon  the  basis  of 
particular  cases  after  the  analogy  of  the  common  law.  If 
common-law  methods  can  be  made  applicable  to  the 
development  of  statutory  rules,  so  much  the  better. 
There  is  much  reason  to  believe  that  many  phases  of 
standardization  (rates,  methods  of  assessment,  safety 
requirements,  classification)  can  be  much  more  readily 
secured  through  the  constant  thought  and  ruling  of  an 
administrative  commission  than  through  the  necessarily 
sporadic  acts  of  a  legislative  assembly.  Legislative  power 
can,  in  other  words,  be  exercised  more  effectually  and 
more  in  accordance  with  the  spirit  of  the  Constitution 
through  delegation  than  directly.  This  consideration 
should  weigh  against  abstract  theories  regarding  the 
non-delegability  of  legislative  power. 


CONSTRUCTIVE  FACTORS  303 

3.  The  organization  of  drafting  bureaus :  This  phase  of 
the  preparation  of  statutes  is  fully  described  in  a  report 
of  the  Special  Committee  on  Legislative  Drafting  of  the 
American  Bar  Association  submitted  in  1913.  It  appears 
that  there  are  now  at  least  fifteen  states  that  have  some 
provision  for  assistance  to  legislators  in  the  technical 
work  of  drafting,  apart  from,  or  in  connection  with,  the 
supply  of  reference  material.  The  following  is  quoted 
from  the  report  of  1913: 

The  Legislative  Reference  Service,  now  actually  carried  on  in 
several  states,  demonstrates  that  it  is  entirely  practicable  to  col- 
lect, classify,  digest,  and  index,  prior  to  a  session  of  a  legislature, 
all  kinds  of  material  bearing  on  practically  all  subjects  likely  to 
become  subjects  of  actual  legislation  at  the  session.  This  material, 
where  the  bureau  is  well  run,  includes  not  only  books  and  pam- 
phlets, such  as  might  be  found  in  an  ordinary  library,  but  also 
copies  of  bills  introduced  into  the  various  state  legislatures  and 
laws  which  have  been  enacted  in  this  and  foreign  countries,  and 
other  printed  material  relating  to  the  operation  of  such  laws  or 
the  conditions  creating  a  need  for  them.  Indeed,  on  most  subjects 
of  possible  legislation  the  difficulty  is  not  to  find  material,  but  to 
arrange  the  large  mass  of  available  material  so  as  to  make  its 
efficient  use  practical.  That  such  service  has  great  possibilities 
of  usefulness  is  evident,  especially  where  the  service  is  directly 
contributory  to  the  drafting  service,  a  matter  to  be  presently 
explained.  The  increasing  complication  of  our  industrial,  social, 
and  governmental  administrative  problems  renders  it  necessary, 
if  the  discussion  of  matters  pertaining  to  legislation  is  to  proceed 
in  a  reasonably  intelligent  manner,  that  systematic  effort  be 
expended  on  the  collection  and  arrangement  of  material  bearing 
on  current  matters  of  public  discussion  likely  to  become  the 


304  STANDARDS  OF  AMERICAN  LEGISLATION 

subject  of  legislative  comment.  A  central  agency  to  furnish  such 
service  does  not  take  the  place  of  special  commissions  or  com- 
mittees created  to  investigate  particular  subjects  and  recommend 
legislation.  The  object  of  the  central  reference  service  should  be 
to  assist  such  bodies  as  well  as  individual  members  of  the  legis- 
lature and  others  desiring  information  pertaining  to  subjects  of 
legislation. 

Existing  agencies  also  demonstrate  that  it  is  possible  to  provide 
expert  drafting  service  for  the  more  important  measures  and  some 
assistance  in  the  drafting  of  all  bills  introduced.  The  number  of 
bills,  for  which  expert  drafting  assistance  can  be  furnished,  would 
appear  to  be  merely  a  question  of  the  size  of  the  force  and  the 
amount  of  the  appropriation  for  its  support.  Your  committee, 
therefore,  believes  that  it  is  entirely  practicable  to  establish,  in  con- 
nection with  any  legislature,  a  permanent  agency  capable  of 
giving  expert  drafting  assistance  for  all  bills  introduced,  and  they 
urge  the  Association  to  place  itself  on  record  as  favoring  such  an 
agency  as  the  most  practical  means  of  bringing  about  scientific 
methods  of  legislation,  that  is  to  say,  methods  of  drafting  statutes 
which  will  secure:  (i)  conformity  to  constitutional  requirements; 
(2)  adequacy  of  the  provisions  of  the  law  to  its  purpose;  (3) 
co-ordination  with  the  existing  law;  and  (4)  the  utmost  simplicity 
of  form  consistent  with  certainty. 

The  organization  of  the  two  services,  legislative  reference  and 
legislative  drafting,  and  their  relation  to  each  other  are  important 
factors  in  the  usefulness  of  the  results  obtained  from  the  estab- 
lishment of  the  service.  The  agencies  now  existing,  considered 
from  the  point  of  view  of  organization,  fall  into  two  classes: 
those  in  which  the  legislative  reference  work  and  the  bill  drafting 
are  provided  for  in  a  single  permanent  bureau,  as  in  Wisconsin, 
Indiana,  and  Pennsylvania,  and  those  in  which  the  legislative 
work  is  carried  on  by  the  state  library  or  one  of  its  divisions,  the 
drafting  work  being  done  by  persons  appointed  by  and  operating 


CONSTRUCTIVE  FACTORS  305 

under  the  direct  control  of  the  legislature,  as  in  New  York,  Con- 
necticut, and  Massachusetts.  Your  committee  does  not  feel 
that  they  are  as  yet  in  a  position  to  express  an  opinion  on  the  rela- 
tive merits  of  either  form  of  organization.  They  are,  however,  of 
the  opinion  that  the  reference  service  should  be  so  organized  and 
operated  as  to  be  directly  contributory  to  the  drafting  service,  and 
that  all  questions  of  organization  of  the  two  services,  their  physical 
location  and  the  relation  of  the  reference  work  to  other  ends 
than  the  drafting  of  bills,  as,  for  instance,  supplying  to  legislators 
and  others  material  for  the  discussion  of  pending  or  possible  legis- 
lation, should  be  decided  with  this  fundamental  principle  in  mind. 
Where,  as  in  New  York,  the  reference  service  is  not  used  by  the 
drafting  department,  comparatively  little  use  of  the  reference 
service  is  made  by  members  of  the  legislature.  Again,  if  the  draft- 
ing service  makes  no  use  of  the  reference  service,  the  drafting 
service  is  necessarily  confined  to  minor  matters  of  form. 

It  is,  of  course,  essential  that  the  member,  administrative 
officer,  committee,  or  commission  employing  the  drafting  service 
shall  be  the  final  judge  of  the  policy  to  be  expressed  in  legislative 
form.  Anyone  entitled  to  use  the  service  should  be  entitled  to  it 
without  regard  to  the  effect  of  the  bill  which  he  desires  to  have 
drawn.  It  is,  however,  not  only  proper  but  vital,  if  the  drafting 
service  is  to  do  more  than  correct  obvious  clerical  and  formal 
errors,  for  those  in  charge  of  the  work  to  be  able,  through  their 
access  to  the  reference  material,  to  indicate,  if  desired,  to  the  spon- 
sors of  the  legislation  the  statutes  of  other  states  or  countries 
dealing  with  the  same  subject  or  direct  their  attention  to  any  other 
material  collected  by  the  reference  service.  Theoretically  the 
member  of  a  legislature  desiring  assistance  in  the  preparation  of 
bills,  if  there  is  no  co-operation  between  the  reference  and  the 
drafting  service,  can  go  first  to  the  reference  service  for  material 
and  then  to  the  drafting  service.  Practically,  however,  in  the 
great  majority  of  cases,  the  member  seeks  the  aid,  not  of  the 


306  STANDARDS  OF  AMERICAN  LEGISLATION 

reference,  but  of  the  drafting  service.  That  service  should  be  in 
a  position  to  place  the  member  in  possession  of  all  pertinent 
matter  in  relation  to  the  subject.  Furthermore,  the  draftsman 
himself  should  be  in  a  position  to  ask  the  person,  commission,  or 
committee  intelligent  questions  as  to  the  details  of  the  measure 
desired.  This  he  cannot  do  unless  he  himself  has  some  familiarity 
with  the  subject-matter.  Where  the  draftsman  is  not  in  a  position 
to  refer  the  person  or  persons  desiring  the  legislation  to  material 
bearing  on  the  subject,  and  where  he  is  not  in  a  position  to  ask 
intelligent  questions  as  to  details,  his  assistance  is  necessarily  con- 
fined to  minor  questions  of  form,  and,  consequently,  the  effective- 
ness of  drafting  service  is  reduced  to  a  minimum.  The  valuable 
results  obtained  in  Wisconsin  are  due  to  a  combination  of  causes, 
not  the  least  of  which  is  the  personality  and  ability  of  Dr.  Charles 
McCarthy,  the  well-known  head  of  the  service.  Another  contribu- 
tory cause,  however,  is  the  fact  that  that  service  has  gone  beyond 
mere  form,  without  any  attempt  to  control  matters  of  policy,  and 
this  would  have  been  impossible  if  the  reference  work  had  not  been 
organized  so  as  to  be  contributory  to  the  drafting  service. 

Clearly  an  experiment  that  has  so  much  promise  in  it 
deserves  every  encouragement,  and  no  effort  should  be 
spared  to  direct  the  movement  into  scientific  lines. 

4.  Codification  of  standing  clauses:  The  value  of 
standardizing  constantly  recurring  terms  and  provisions, 
which  enter  into  or  are  subsidiary  to  the  main  provisions 
of  statutes,  has  been  discussed  before.  Such  standard- 
ization economizes  legislative  work,  helps  to  avoid  dupli- 
cation and  inconsistency,  and  makes  for  more  perfect 
equality  in  the  administration  of  the  laws.  If  effected  by 
separate  statutes,  it  insures  a  degree  of  care  in  the  con- 
sideration of  technical  detail  which  is  otherwise  hardly 


CONSTRUCTIVE  FACTORS  307 

possible.  For  subsidiary  clauses  forming  part  of  statutes 
dealing  with  contentious  policies  are  often  regarded  as 
mere  technicalities  and  escape  proper  scrutiny.  As  sep- 
arate acts  their  preparation  is  likely  to  be  committed 
to  lawyers  specially  familiar  with,  or  interested  in,  the 
particular  subject,  and  they  will  receive  the  benefit  of 
their  knowledge  and  experience. 

We  have  this  standardization  in  our  codes  of  procedure 
which  control  the  criminal  and  civil  enforcement  of 
statutes  from  the  point  where  the  aid  of  the  courts  is 
invoked;  we  have  it  in  the  provisions  of  general  city  acts 
which  govern  the  operation  of  municipal  ordinances, 
since  the  creation  of  new  administrative  powers  and 
remedies  is  not  as  a  rule  within  the  scope  of  delegated 
authority;  we  have  it  in  interpretation  acts,  in  acts 
relating  to  the  exercise  of  eminent  domain,  in  acts  relating 
to  public  officers  and  official  bonds,  hi  civil-service  acts, 
and  perhaps  in  others.  The  practice  is  thus  obviously 
not  a  new  one,  but  it  is  capable  of  much  more  extensive 
application. 

The  report  of  the  American  Bar  Association  Committee, 
above  referred  to,  submitted  a  list  of  topics  the  stand- 
ardization of  which  was  thought  desirable,  if  practicable, 
and  suggested  the  preparation  of  a  drafting  manual  of 
instructions  and  model  clauses.  The  Bar  Association 
authorized  the  committee  to  proceed  with  the  work,  and 
the  Reports  of  1914,  1915,  and  1916  brought  some  instal- 
ments of  such  a  manual.  There  was  thus  drafted  an  act 
providing  the  procedure  for  the  adoption  of  statutes  or 


308  STANDARDS  OF  AMERICAN  LEGISLATION 

ordinances  submitted  to  popular  vote  in  municipalities. 
The  enactment  of  such  a  statute  would  make  it  possible 
to  provide  very  simply  in  any  adoptive  act  that  the  act 
shall  not  take  effect  in  any  city  until  adopted  by  popular 
vote  therein.  Clearly  the  existence  of  such  a  statute 
could  not  be  otherwise  than  beneficial.  Desirable  legis- 
lation has  been  defeated  repeatedly  by  defective  submis- 
sion clauses. 

The  result  of  a  series  of  such  "clauses  acts"  would  be 
the  codification  of  an  important  section  of  administrative 
law.  It  would  give  occasion  to  consider  systematically 
certain  phases  of  legislation  upon  which  neither  lawyers 
nor  legislators  appear  to  have  settled  convictions.  The 
discussion  of  penalty  clauses  in  the  report  of  1915  will 
serve  as  an  illustration  of  this;  no  similar  discussion  of 
this  ever-recurring  subject  can  be  found  anywhere  in 
our  entire  legal  literature.  In  our  present  legislative 
practice  the  matter  is  left  to  the  discretion  or  whim 
of  the  draftsman,  and  unless  he  offers  some  extreme 
or  unusual  clause  his  propositions  will  arouse  only  the 
slightest  interest. 

Should  the  Committee  of  the  American  Bar  Association 
succeed  in  completing  the  outlined  manual  or  a  substantial 
portion  thereof,  the  indorsement  of  the  Association  would 
add  considerable  weight  to  whatever  intrinsic  merit  the 
work  might  possess.  Care  would  have  to  be  taken, 
however,  not  to  misrepresent  the  meaning  of  such 
indorsement.  For  in  the  nature  of  things  it  is  impossible 
that  a  large  body  can  properly  scrutinize  such  work,  and 


CONSTRUCTIVE  FACTORS  309 

it  is  compelled  to  take  much  of  it  on  faith  and  credit.  No 
legislative  measure,  however,  can  safely  dispense  with 
searching  and  even  unfriendly  criticism. 

There  is  one  body  pre-eminently  fitted  to  give  this 
criticism — the  National  Conference  of  Commissioners  on 
Uniform  State  Laws.  Its  indorsement  of  an  act  is 
nearly  always  the  result  of  protracted  discussion  extending 
over  a  number  of  annual  sessions,  and  the  value  of  the 
indorsement  is  proportionately  high.  In  such  a  body  the 
question  would  of  course  arise  whether  uniformity  in 
standing  clauses  is  possible.  The  impression  may  exist 
that  local  peculiarities  enter  largely  into  the  subsidiary 
phases  of  legislation.  Careful  examination  and  still  more 
a  practical  attempt  at  unification  will  probably  show  this 
impression  to  be  unfounded. 

Clauses  acts  operate  by  incorporation  into  other 
statutes  which  tacitly  or  expressly  refer  to  them.  Their 
mere  enactment  gives  them  no  mandatory  character; 
that  comes  only  from  voluntary  acceptance  by  the  legis- 
lature in  connection  with  subsequent  legislation.  The 
legislature  may  at  any  time  override  them  and  insert 
different  provisions  in  a  particular  act.  This  may  result 
even  from  habit,  and  if  possible  such  abrogation  should 
be  avoided  by  construction.  However,  in  view  of  this 
precarious  status,  a  general  subsidiary  act  would  have 
to  win  favor  by  its  own  merits.  All  the  more  readily 
should  it  be  given  a  chance  to  prove  its  merits,  and  its 
non-mandatory  character  should  be  an  argument  in  favor 
of  its  adoption. 


310  STANDARDS  OF  AMERICAN  LEGISLATION 

JURISPRUDENCE  AS  A  CONSTRUCTIVE  FACTOR 

There  are  principles  of  legislation  too  varying  in  their 
operation  to  be  standardized  by  codification :  that  is  true 
of  the  correlation  of  provisions,  of  the  conservation  of 
interests,  of  the  protection  of  vested  rights,  of  adequate 
differentiation,  of  the  drafting  principles  that  serve  to 
make  substantive  clauses  available  with  the  least  friction 
and  ambiguity.  These  principles  can  be  formulated  as 
rules  only  to  a  limited  extent,  if  at  all;  in  the  main  their 
application  depends  upon  training  and  experience,  and 
their  statement  can  be  undertaken  only  in  the  form  of 
scientific  exposition. 

What  is  the  outlook  for  scientific  work  of  this  kind  ? 
When  we  consider  the  amount  of  trained  and  systematized 
thought  devoted  to  legal  problems,  the  proportion  of  it 
that  goes  to  constructive  principles  of  legislation  is  small. 
I  refer  to  legal,  and  not  to  social,  economic,  or  political, 
principles  of  legislation,  for  the  latter  do  not  belong  to 
jurisprudence,  but  to  the  social  sciences,  which  devote  a 
perfectly  adequate  proportion  of  their  labors  to  questions 
of  legislation.  Why  this  difference  between  the  law  and 
the  social  sciences  ?  Because  the  former  has  to  satisfy  a 
professional  demand  while  the  latter  do  not,  or  only  to 
a  very  slight  degree.  Practically  all  legal  writing  is 
adapted  to  the  needs  of  practitioners,  and  the  elaborate 
apparatus  of  making  legal  sources  accessible  is  entirely 
subservient  to  that  purpose.  It  is  a  matter  of  a  market 
and  of  supply  and  demand.  The  influence  extends  to  the 
law  schools.  Being  organized  for  the  training  of  prac- 


CONSTRUCTIVE  FACTORS  311 

titioners,  they  do  not  concern  themselves  with  problems 
analogous  to  those  which  are  dealt  with  in  social-science 
classrooms.  That  which  is  not  actually  or  potentially  an 
appropriate  subject  for  judicial  or  forensic  discussion  has 
no  place  in  legal  instruction.  The  problem  of  the  most 
effective  and  frictionless  distribution  of  legislative  powers 
among  nation,  state,  and  locality  is  thus  treated  as 
belonging,  not  to  constitutional  law,  but  to  political 
science.  The  problem  being  at  least  as  much  political  as 
legal,  this  practical  division  may  be  justified.  The  most 
equitable  method  of  dealing  with  vested  rights,  the 
practical  bases  of  classification,  the  subjects  most  appro- 
priate for  delegation  of  legislative  power,  however,  are 
not  political,  but  strictly  legislative  problems  and  can 
be  adequately  handled  only  by  a  legally  trained  mind; 
yet  since  they  extend  beyond  the  province  of  judi- 
cial cognizance,  they  are  not  considered  as  part  of  con- 
stitutional law,  with  the  result  that  they  are  treated 
nowhere. 

This  condition  is  not  altogether  peculiar  to  this 
country.  The  professional  point  of  view  has  dominated 
law  teaching  since  the  days  when  the  Roman  jurists 
established  their  schools,  except  perhaps  during  the  period 
when  the  law  of  nature  had  an  honored  place  in  the 
universities ;  it  dominates  the  teaching  of  law  in  Germany 
today.  The  situation  in  Germany  is,  however,  different 
in  two  respects. 

In  the  first  place,  in  America  law  is  taught  now  almost 
exclusively  on  the  basis  of  cases,  a  method  superior  to 


312  STANDARDS  OF  AMERICAN  LEGISLATION 

the  German  system  as  a  training  for  the  future  prac- 
titioner, but  as  unfavorable  as  possible  from  the  legislative 
point  of  view;  for  the  ideals  of  case  law  will  tend  to  be 
those  of  the  system  in  which  judge-made  law  had  its 
highest  development,  and  can  hardly  be  expected  to  rise 
above  them;  and  the  case  method  will  foster  the  common- 
law  attitude  toward  legislation,  looking  upon  it  as  an 
inferior  product  of  the  non-legal  mind  to  be  tolerated 
and  minimized  in  its  effects.  On  the  other  hand,  the 
entire  law  of  Germany,  civil,  criminal,  and  procedural, 
has  been  codified  within  the  last  generation  or  two;  in 
view  of  this  it  is  impossible,  in  teaching  it,  to  ignore  the 
dynamic  or  genetic  side  of  the  law,  and,  in  comparing 
code  provisions  with  the  common-law  doctrines  which 
they  superseded,  the  legislative  point  of  view  necessarily 
asserts  itself.  As  far  as  public  legislation  is  concerned, 
the  German  law  curricula  include  a  course  (called  admin- 
istrative law)  reviewing  the  entire  body  of  statutory  law — 
a  field  which  we  ignore. 

In  the  second  place,  in  Germany  neglect  in  the  law 
school  does  not  mean  total  neglect,  for  there  is  a  demand 
for  constant  thought  on  principles  of  legislation  in  the 
government  departments  which  are  charged  with  the 
working  out  of  legislative  projects.  The  officials  to 
whom  this  work  is  delegated  are  jurists  as  thoroughly 
trained  and  of  as  high  standing  as  the  teachers  in  the 
universities;  they  constituted  the  majority  of  the  civil- 
code  commissioners,  and  the  Motive  of  the  first  draft  are 
a  lasting  monument  to  the  high  scientific  quality  of  their 


CONSTRUCTIVE  FACTORS  313 

work.  The  preparation  of  the  code  afforded  the  oppor- 
tunity for  a  systematic  statement  of  the  entire  body  of 
principles  of  private  law  legislation.  Nothing  similar 
exists  for  public  legislation  in  which  legal  principles  are 
simply  applied  and  only  incidentally  discussed  when 
occasion  offers.  Systematic  exposition  is  the  fruit  of 
university  teaching,  as  Blackstone's  Commentaries 
demonstrate.  But  while  without  such  exposition  we 
can  perhaps  hardly  speak  of  an  established  science,  it  is 
quite  possible  that  a  strong  and  long-sustained  official 
tradition  may  firmly  and  quite  adequately  support  cer- 
tain principles,  and  this  is  fully  borne  out  by  a  study  of 
English,  French,  and  German  legislation. 

We  find  such  traditions  in  our  judiciary,  but  not  in 
connection  with  the  preparation  of  statutes,  and  this 
substitute  for  a  science  of  legislation  therefore  fails  in 
America.  Nor  is  it  likely  that  the  drafting  bureaus  now 
being  organized  will  very  soon  gain  sufficient  strength  to 
supply  the  defect,  whatever  we  may  expect  of  them  if  they 
are  allowed  to  work  under  favorable  conditions. 

In  view  of  these  conditions  we  must  necessarily  look 
to  American  law  schools  for  contributions  to  the  develop- 
ment of  the  legislative  or  constructive  side  of  juris- 
prudence. Effective  work  in  this  direction  can  hardly 
be  expected  without  the  organization  of  special  courses 
dealing  with  that  aspect  of  the  law,  for  in  teaching  the 
judicial  and  the  legislative  point  of  view  cannot  be  com- 
bined to  advantage,  and  the  treatment  from  the  latter 
point  of  view  will  inevitably  be  subordinated,  with  the 


314  STANDARDS  OF  AMERICAN  LEGISLATION 

result  that  no  systematic  work  will  be  produced;  the 
present  condition  of  constitutional  law,  where  the  con- 
structive point  of  view  would  naturally  tend  to  assert 
itself  with  the  greatest  relative  force,  proves  this  incom- 
patibility. 

The  technical  difficulties  of  courses  in  legislation  from 
the  point  of  view  of  instruction  must  not  be  under- 
estimated, and  this  is  not  the  place  in  which  to  discuss 
them  fully;  but  unless  they  can  be  overcome  the  scientific 
treatment  of  jurisprudence  must  remain  one-sided  and 
defective,  and  some  of  the  most  important  and  interesting 
problems  of  legislation  will  continue  to  be  dealt  with  in 
slipshod  and  haphazard  ways,  because  it  is  no  one's 
business  to  give  them  systematic  consideration. 

SOURCE  MATERIAL 

The  materials  for  the  study  of  principles  of  legisla- 
tion are  not  as  simple  as  those  for  the  study  of  the 
common  law. 

The  statutes,  which  are  the  primary  source  of  the 
history  of  legislation,  are  unindexed  except  for  each 
volume  of  session  laws,  which  makes  the  tracing  of 
developments  laborious,  especially  because  the  phases  of 
legislation  which  are  of  particular  scientific  interest  are 
often  merely  incidental  to  the  main  topics  which  alone 
appear  in  such  indexes  as  exist;  no  index  would  thus  give 
a  clue  whether  a  prohibition  act  contained  saving 
clauses  with  regard  to  vested  rights  or  compensation 
provisions.  An  exhaustive  study  of  such  a  topic  as 


CONSTRUCTIVE  FACTORS  315 

powers  to  grant  or  revoke  licenses  or  of  penal  clauses 
would  thus  be  practically  impossible.  And  even  if  it 
were  possible  to  collate  the  entire  statutory  material,  it 
would  hardly  be  worth  the  labor  expended,  for  a  bare 
provision  without  any  clue  to  it  is  not  enlightening.  We 
know  how  statutes  are  made  today,  and  the  method  has 
not  been  different  at  any  time  in  the  history  of  American 
legislation;  an  interesting  or  exceptional  provision  as 
likely  as  not  represents  nothing  but  the  casual  thought  of 
the  draftsman,  and  provisions  of  common  occurrence  may 
rest  merely  on  habit  and  precedent.  The  significance  of 
a  statutory  practice  depends  upon  one  of  two  factors, 
namely,  that  it  has  either  been  the  subject  of  thought  and 
discussion  or  that  it  has  been  tested  by  practical  applica- 
tion; but  in  most  cases  there  is  no  record  information  on 
either  of  these  points.  The  most  complete  collection  of 
statutory  material  may  therefore  be  dreary  and  lifeless 
and  relatively  barren  of  valuable  data.  For  practical 
purposes,  therefore,  it  must  as  a  rule  suffice  to  pick  out 
some  typical  state  and  period  in  connection  with  some 
field  of  legislation  that  has  stirred  public  interest,  such  as 
liquor,  railroads,  or  elections,  although  even  with  this 
restriction  we  shall  often  remain  without  any  clue  as  to 
the  significance  of  provisions.  For  recent  periods  a  good 
deal  has  been  done  by  various  agencies  in  bringing 
together  the  entire  statutory  material  on  certain  topics: 
on  railroad  legislation  by  the  Interstate  Commerce  Com- 
mission, on  electrical  legislation  by  the  American  Tele- 
graph and  Telephone  Company,  on  tax  laws  by  the 


316  STANDARDS  OF  AMERICAN  LEGISLATION 

Commission  on  Corporations,  on  road  laws  and  pure-food 
laws  by  the  Department  of  Agriculture,  etc.;  but  the 
pictures  presented  by  these  collections  are  purely  static, 
and  since  the  dates  of  statutes  are  not  given,  nothing  can 
be  learned  as  to  development  of  laws  even  by  comparison. 
The  most  instructive  phase  of  legislation  is  sometimes  its 
growth  by  amendments,  but  nothing  is  more  difficult  to 
trace.  Altogether,  therefore,  the  primary  source  material 
for  a  study  of  principles  of  legislation  is  in  a  singularly 
inaccessible  and  unilluminating  condition. 

The  secondary  legislative  material — debates,  reports, 
documents — is  ample  for  Congress  and  poor  for  most  of 
the  states.  Congressional  debates  sometimes  throw  a 
valuable  light  on  the  legal  aspects  of  legislation,  although 
— as  should  be  expected  of  speeches  in  open  sessions — 
other  aspects  greatly  predominate.  Committee  reports 
likewise  concern  themselves  rarely  with  technical  phases 
of  bills,  and  discussions  of  constitutional  questions  invari- 
ably take  the  form  of  regular  lawyers'  briefs  digesting 
court  decisions  without  presenting  independent  views 
of  constitutional  principles — another  illustration  of  the 
absolute  domination  of  the  judicial  point  of  view. 

In  the  states  there  is  practically  nothing  published  in 
regular  series  corresponding  to  congressional  debates  or 
documents,  but  merely  scattered  papers  and  reports, 
which  are  now  being  indexed  (at  least  so  far  as  they 
contain  economic  material)  for  the  several  states  by  the 
Carnegie  Institution.  Committees  do  not  as  a  rule 
submit  printed  reports,  and  arguments  presented  to  them 


CONSTRUCTIVE  FACTORS  317 

by  interested  organizations  are  not  preserved  in  an 
accessible  form.  There  is  a  growing  amount  of  pamphlet 
literature  issued  by  private  and  semi-public  organizations, 
such  as  the  National  Civic  Federation,  the  Association 
for  Labor  Legislation,  and  others,  of  which  an  account  is 
given  from  time  to  time  by  a  Public  Affairs  Information 
Service,  and  much  of  which  is  available  for  tracing  the 
history  of  legislation. 

Administrative  reports  sometimes  contain  valuable 
information  concerning  the  working  of  statutes  and 
needed  changes;  more  commonly  they  give  merely 
statistics,  and  comment  is  perfunctory  or  tainted  by 
official  complacency.  Of  greater  interest  are  the  pro- 
ceedings of  national  conferences  of  various  classes  of 
officials  (factory  inspectors,  tax  commissioners,  etc.)  so 
far  as  they  are  published  and  preserved,  which  is  not 
always  the  case.  The  administration  of  laws  of  economic 
and  social  interest  is  also  frequently  made  the  subject  of 
comment  in  the  proceedings  of  scientific  associations,  in 
journals  and  treatises,  and  particularly  the  material  for 
the  study  of  the  administration  and  enforcement  of  labor 
legislation  has  become  abundant,  and  much  of  legal 
interest  can  be  gleaned  from  these  publications.  The 
report  made  under  the  auspices  of  a  Committee  of  Fifty 
upon  the  legislative  aspects  of  the  liquor  problem1  is  a 
source  of  information,  of  which  we  have  too  few  examples. 
On  the  whole  the  privately  collected  material  is  more 
valuable  than  the  official  reports. 

1  Koren  and  Wines,  Boston,  1898. 


3l8  STANDARDS  OF  AMERICAN  LEGISLATION 

In  contrast  to  the  United  States  the  secondary 
legislative  material  of  the  European  states  is  of  very 
great  value  for  the  study  of  principles  of  legislation.  Not 
too  much  must  be  expected  of  parliamentary  debates, 
since  speeches  in  open  sessions  are  mainly  political;  in 
Germany,  particularly,  they  are  spoken  "through  the 
window"  and  are  juristically  of  hardly  any  value.  Of 
the  English  debates  those  of  the  House  of  Lords  yield 
much  more  than  those  of  the  House  of  Commons,  for 
the  House  of  Lords  is  full  of  great  experts,  and  in  the 
House  of  Commons  the  real  debate  on  measures  of  tech- 
nical difficulty  takes  place  in  committee  and  remains 
unreported.  The  French  debates  seem — at  least  in  the 
Senate — of  a  high  order  and  give  a  better  insight  into 
French  public  law  than  many  a  treatise. 

The  English  parliamentary  documents  known  as  Blue 
Books  have  long  been  recognized  as  an  invaluable  source 
of  economic  and  social  history,  and  a  great  deal  can  also 
be  gathered  concerning  administration  and  enforcement 
of  laws.  In  view  of  the  similarity  of  common-law 
foundation,  this  material  is  also  instructive  to  American 
students,  although  for  the  study  of  constitutional  and 
administrative  law  it  has  hardly  been  utilized.  Of  non- 
official  publications  the  Justice  of  the  Peace,  a  weekly 
journal  for  the  use  of  English  magistrates,  contains 
perhaps  more  of  value  to  the  student  of  legislation  than 
any  other,  for  it  is  the  only  publication  dealing  primarily 
with  public  legislation  in  which  the  legal  point  of  view 


CONSTRUCTIVE  FACTORS  319 

distinctly  predominates.  It  does  not,  however,  touch 
statutes  that  are  not  locally  administered. 

The  printed  matter  published  in  Germany  by  or  for 
the  various  legislative  bodies  is  on  the  whole  similar  to 
that  contained  in  the  Blue  Books,  and  the  main  stress 
here  as  there  lies  on  political,  social,  and  economic,  and 
not  on  legal,  questions.  Important  legislation  is  usually 
preceded  by  preliminary  "memorials"  (Denkschriften, 
Motive)  prepared  by  officials  of  the  ministries;  these  are 
often  printed,  though  not  always  listed  in  the  book  trade, 
and  hence  are  sometimes  not  readily  accessible.  After  a 
statute  has  been  passed,  it  is  likely  to  be  made  the  subject 
of  an  elaborate  commentary,  in  which  all  preparatory 
material  is  digested.  Indeed,  the  official  who  had  the 
main  share  in  preparing  the  law  often  appears  as  the 
author  of  such  a  commentary.  In  this  way  the  process 
by  which  final  results  have  been  reached  is  often  laid  bare, 
and  it  is  possible  to  trace  the  underlying  principles  of 
legislation.  The  subsequent  operation  and  enforcement 
of  statutes  can  then  be  studied  hi  administrative  reports, 
some  of  which,  like  the  factory  inspectors'  reports,  enjoy 
a  high  authority.  Even  from  the  German  material  we 
can  derive  valuable  lessons  for  American  legislative 
problems. 

The  law  reports  as  legislative  material. — If  we  are 
poor  in  sources  of  information  which  in  European 
countries  are  abundant,  we  surpass  them  in  the  vol- 
ume of  reported  adjudications.  The  law  reports  could 


320  STANDARDS  OF  AMERICAN  LEGISLATION 

probably  be  made  to  yield  a  great  deal  of  valuable 
information  and  material  bearing  on  constructive  prin- 
ciples of  legislation.  They  are  not  indexed  or  digested 
for  that  purpose;  but  revised  statutes  not  uncommonly 
contain  references  to  the  cases  in  which  each  particular 
section  is  discussed  or  cited,  and  on  that  basis  a  tolerably 
complete  view  of  the  judicial  treatment  of  statutes  may 
be  obtained.  This  is  not  merely  valuable  for  purposes  of 
interpretation,  but  often  gives  first-hand  information  con- 
cerning the  history  of  a  statute  and  explains  subsequent 
amendments.  That  a  statute  becomes  the  subject- 
matter  of  litigation  regularly  indicates  some  difficulty 
encountered  in  its  application  and  may  suggest  methods 
or  principles  of  legislation  whereby  that  difficulty  might 
have  been  avoided.  From  this  point  of  view  cases  could 
perhaps  be  selected  and  worked  up  to  as  much  advantage 
as  they  are  now  for  the  study  of  common-law  doctrines. 

The  legal  science  of  legislation  means  the  knowledge 
of  how  to  translate  a  given  policy  into  the  terms  of  a 
statute.  Even  if  it  cannot  be  carried  to  the  plane  of  an 
exact  science,  it  may  render  possible  the  delegation  to 
competent  hands  of  the  task  of  statute-making  under 
brief  instructions  in  the  confidence  that  it  will  be  faith- 
fully and  impartially  performed.  The  determination  of 
policies  might  thus  be  made  a  purely  political  function, 
unencumbered  by  the  confusing  bywork  of  technical 
detail,  and  the  efficient  control  of  legislation  by  repre- 
sentative and  popular  bodies  would  thus  in  substance  be 
strengthened  and  not  diminished.  The  development  of 


CONSTRUCTIVE  FACTORS  321 

this  rich  and  practically  unworked  field  may  therefore  be 
urged  from  the  point  of  view  of  government  as  well  as 
from  that  of  jurisprudence.  If  the  foregoing  chapters 
will  serve  to  stimulate  interest  in  the  subject  and  its 
possibilities,  they  have  not  been  written  in  vain. 


INDEX 


INDEX 


Abilene  case  doctrine,  229 
Accident  liability,  109 
Administrative  code,  264 
Adoptive  acts,  submission  of,  307 
Advertising,  113 
Aesthetic  standards,  112 
Agrarian  legislation,  30,  108 
Aliens,  9 
Alkali  acts,  82 
Alum,  96 
Amendments,  155 
Amusements,  104 
Anti-social  conduct,  106 
Anti-trust  legislation,  73,  222-25 
Assumption  of  risk,  54,  59 

Banking,  40,  160,  162-66 

Beauty,  115 

Betting,  49 

Billboards,  114 

Bills,  153 

Bills  of  rights,  178-84 

Blue  books,  318 

Boycott,  6 1 

Bucket  shop,  89 

Caveat  emptor,  45 

Charities,  36 

Children,  12,  26,  37 

Church,  jurisdiction,  35 

Civil  liberty,  187,  199,  207 

Civil-rights  acts,  128 

Civil-service  law,  146,  266,  278 

Class  distinction,  8 

Clauses  acts,  263,  306-8 

Coal-weighing  acts,  135,  241 

Code  amendments,  260 

Codification  of  standing  clauses,  267, 

306 

Combination,  61,  64 
Commercial  law,  44 


Commissions:     administrative,    301; 

legislative,  300 
Common  carrier,  128 
Common  law,  34,  70 
Compensation,  284 
Conspiracy,  61,  63,  73 
Construction,  constitutional,  275 
Contract,  freedom  of,  124 
Contracting  out,  52-57 
Contracts,  186;  obligation  of,  283 
Coppage  v.  Kansas,  243 
Corporate  by-laws,  188 
Corporation,  39,  161,  167-71 
Corrective  legislation,  137 
Correlation,  225-48 
Customs  administration,  265 

Delegation  of  legislative  power,  301 
Democracy  and  morals,  19 
Democratization  of  government,  148 
Discrimination,  128,  226,  271 
Disfigurement,  113 
Drafting  of  legislation,  289-91,  303-6 
Due  process,  2,  180,  207-10,  219 

Elective  office,  148-49 
Employee's  covenants,  51 
Employer's  liability,  52 
English  legislation — drafting,  290 
Equality,  9,  219,  270-72 
Equity,  35 

European  legislation,  287 
Executive,  in  legislation,  288,  291 
Express  companies,  40 

Factory  acts,  249 
Fellow-servant  doctrine,  46 
Fire  by  locomotives,  247 
Florida  constitution,  163,  168 
Fourteenth  Amendment,  202 
Fraud,  75 


325 


326 


STANDARDS  OF  AMERICAN  LEGISLATION 


Freedom:  of  contract,  2,  55, 124,  200; 

of  thought,  13;    of  vocation,  181, 

212 

French  legislation,  264,  287,  289 
Fundamental  rights,  175-84 
Futures,  dealings  in,  89 

Gambling,  86 

German   Empire,    and   local    taxing 

powers,  280 
German  legislation,  284,  287, 289, 312, 

3i9 

Granger  cases,  203 
Great  charter,  186 

Health  legislation,  20,  83 
Horse  racing,  87 
Hours  of  labor,  26 
House  of  Lords,  294,  318 
Humanitarian  provisions,  158 
Husband  and  wife,  227 

Illinois  constitutions,  147 
Illinois,  plan  for  legislative  commis- 
sion, 299 
Immigration,  10 
Imprisonment  for  debt,  158 
Income  tax,  280 
Informers'  shares,  268 
Inherent  limitations,  211 
Initiative  and  referendum,  149 
Initiative  in  legislation,  288 
Injunctions,  41 
Inspection  laws,  77 
Insurance,  40 

Interstate  Commerce  Act,  229-35 
Iowa  constitution,  1857,  178 
Ives  v.  So.  Bujfalo  R.  Co.,  i,  205 

Judges  elective,  148,  149 
Judicial  power,  192 
Jurisprudence,  251,  310 

Labor:  demands  of,  31 

Labor  legislation,  122,  204-7,  24° 

Labor  unions,  243 

Landlord  and  tenant,  46,  60,  108 

Law  reports,  319,  320 

Law  schools,  310-14 


Legislative  reference  bureaus,  303-6 

Lewdness,  78 

Liability,  247 

Libel,  law  of,  15,  177 

License  requirements,  81,  99,  159 

Liquor,  67,  84,  159 

Loan  Association  v.  Topeka,  202 

Local  law,  34 

Local  legislation,  157 

Long-  and  short-haul  clause,  132-34, 

140,  256 

Lotteries,  87,  159 
Louisville  &•  Nashville  R.  Co.  v.  Mott- 

ley,  282 

Malice,  107 

Mandamus,  jurisdiction,  277 

Marbury  v.  Madison,  276 

Market  overt,  44-45 

Married  women,  n,  37,  43 

Massachusetts,  Body  of  Liberties, 

181 

Minimum  wage,  126 
Monopoly,  74,  130,  187 
Morals  legislation,  17 

Nash  v.  United  States,  223 
Natural  law,  189,  191,  192 
Negligence,  52,  58,  62 
New  York  legislation,  260,  261 
Nuisance,  60,  65,  78 

Obscenity,  78 
Oleomargarine,  91 
Options,  90 
Ordinances,  266 
Ownership,  185 

Parliament,  legal  omnipotence,  189- 

191 

Parliamentary  debates,  289,  316,  318 
Penalties,  258,  259,  268-70 
Perpetuities,  rule  against,  4,  43 
Pipe-line  cases,  235-37 
Police  power  and  vested  rights,  282-85 
Poor  relief,  24 
Press,  freedom  of,  14 


INDEX 


327 


Price-cutting,  118 

Primogeniture,  43 

Private-bill  legislation,  295-98 

Private  law,  185 

Probate  jurisdiction,  146 

Procedure:  codes  of,  307;  legislative, 

293,  298 

Prohibition,  85,  95,  173,  197-99,  221 
Public  policy,  contracts  against,  49 
Public-service  corporation,  171 

Race,  13,  128 
Railroad-aid  bonds,  200 
Railroads,  40,  59,  130,  161,  165-67 
Rate  agreements,  234 
Rates  of  taxation,  256 
Reasonableness,  220 
Recall  of  judicial  decisions,  3 
Referendum,  149,  162 
Religious  liberty,  13,  176 
Reports:   administrative,  317;    legis- 
lative, 316 

Restraint  of  trade,  50,  72 
River  and  harbor  improvements,  258 
Royal  prerogative,  186,  187 

Safety  legislation,  20,  83 

Salaries,  standardization,  257 

Scalping  tickets,  117 

Science  in  legislation,  240-51 

Sedition,  15 

Shareholders'  liability,  164,  170 

Sherman  Act,  222-25,  229~35>  267 

Short  ballot,  150 

Slaughterhouse  cases,  202 

Slavery,  8 

Social  insurance,  109 

Social  legislation,  22 

Social  obligation,  109 

Social  solidarity,  in 


Special  legislation,  157 
Speculation,  89 
Spite  fences,  108 
Standard  Oil  case,  74 
Standardization,  248-70, 302, 306, 307 
Star  chamber,  38,  187 
State  and  federal  powers,  278 
Statute  books,  314-16 
Stock  dealings,  89 
Store-order  acts,  122-26 
Strikes,  64 

Style  of  legislation,  154-56,  385 
Suffrage,  147,  148 
Sunday  laws,  104,  199 
Supreme  court,  original  jurisdiction. 
276 

Tariff  legislation,  265 

Taxing  power,  279 

Technical  phases  of  legislation,  262 

Theater  tickets,  136 

Title  of  acts,  154 

Trade  commissions,  15,  116,  302 

Trade  nuisances,  80 

Trade  regulation,  76 

Trading  stamps,  117 

Tramc^agreement  cases,  230-35 

Unfair  competition,  75-116 
Uniform  state  laws,  commission  on, 

309 

Unsightliness,  112 
Usury,  1 20 

Vested  rights,  189,  197,  201,  282 
Veto  power,  294 

Wage  legislation,  30,  122 

Warehouses,  237-39 

Women,  26-29 

Workmen's  compensation  law,  i,  109 


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